5-YEAR CREDIT AGREEMENT
Dated as of April 1, 1998
Among
TEXTRON INC.,
THE BANKS LISTED HEREIN,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
CITICORP SECURITIES, INC.
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Co-Syndication Agents
______________________
X.X. XXXXXX SECURITIES INC.,
Arranger
TABLE OF CONTENTS
Page
ARTICLE 1Definitions and Accounting Terms
Section 1.01. Definitions 1
Section 1.02. Accounting Terms 18
Section 1.03. Currency Equivalents 18
ARTICLE 2Amounts and Terms of Commitments and Loans;
Notes
Section 2.01. Revolving Loans 18
Section 2.02. Competitive Bid Loans 22
Section 2.03. Notices of Other Currencies 24
Section 2.04. Substitution of Euro for National
Currency 25
Section 2.05. Notices of Conversion/Continuation 25
Section 2.06. The Revolving Notes and Competitive
Bid Notes 26
Section 2.07. Pro Rata Borrowings 27
Section 2.08. Interest 28
Section 2.09. Commissions and Fees 31
Section 2.10. Reductions in Commitments;
Repayments and Payments 33
Section 2.11. Use of Proceeds 37
Section 2.12. Special Provisions Governing
Eurocurrency Rate Loans and/or Competitive
Bid Loans 37
Section 2.13. Capital Requirements 45
Section 2.14. Regulation D Compensation 45
ARTICLE 3Conditions to Loans
Section 3.01. Conditions to Initial Loans 46
Section 3.02. Conditions to All Loans 47
Section 3.03. Conditions to All Competitive Bid
Loans 48
Section 3.04. Conditions to Loans to Subsidiary
Borrowers 49
ARTICLE 4Representations and Warranties
Section 4.01. Organization, Powers and Good
Standing 50
Section 4.02. Authorization of Borrowing, Etc 50
Section 4.03. Financial Condition 51
Section 4.04. No Adverse Material Change 52
Section 4.05. Litigation 52
Section 4.06. Payment of Taxes 52
Section 4.07. Governmental Regulation 52
Section 4.08. Securities Activities 53
Section 4.09. ERISA Compliance 53
Section 4.10. Certain Fees 54
ARTICLE 5Affirmative Covenants
Section 5.01. Financial Statements and Other
Reports 54
Section 5.02. Conduct of Business and Corporate
Existence 56
Section 5.03. Payment of Taxes 56
Section 5.04. Maintenance of Properties;
Insurance 56
Section 5.05. Inspection 57
Section 5.06. Compliance with Laws 57
ARTICLE 6Negative Covenants
Section 6.01. Merger 58
Section 6.02. Liens 58
Section 6.03. Financial Covenants 59
Section 6.04. Existing Subordinated Debt 60
Section 6.05. Use of Proceeds 60
ARTICLE 7Events of Default
Section 7.01. Failure to Make Payments When Due 60
Section 7.02. Default in Other Agreements 60
Section 7.03. Breach of Certain Covenants 61
Section 7.04. Breach of Warranty 61
Section 7.05. Other Defaults under Agreement 61
Section 7.06. Involuntary Bankruptcy; Appointment
of Receiver, etc 61
Section 7.07. Voluntary Bankruptcy; Appointment
of Receiver, etc 62
Section 7.08. Judgments and Attachments 62
Section 7.09. Dissolution 62
Section 7.10. ERISA Title IV Liabilities 62
Section 7.11. Redenomination Upon Acceleration 64
ARTICLE 8Agents
Section 8.01. Appointment 64
Section 8.02. Powers; General Immunity 64
Section 8.03. Representations and Warranties; No
Responsibility for Appraisal of
Creditworthiness 66
Section 8.04. Right to Indemnity 67
Section 8.05. Payee of Note Treated as Owner 67
Section 8.06. Resignation by the Agents 67
Section 8.07. Successor Agents 68
ARTICLE 9Guarantee
Section 9.01. Guarantee 68
Section 9.02. Obligation Not Affected by Certain
Events 68
Section 9.03. Guarantee of Payment 69
Section 9.04. Obligation Not Subject to
Limitation 69
Section 9.05. Order of Payment 70
Section 9.06. Waiver by the Company 70
ARTICLE 10Miscellaneous
Section 10.01. Benefit of Agreement 71
Section 10.02. Expenses 74
Section 10.03. Indemnity 74
Section 10.04. Setoff 74
Section 10.05. Ratable Sharing 75
Section 10.06. Amendments and Waivers 76
Section 10.07. Independence of Covenants 77
Section 10.08. Notices 77
Section 10.09. Survival of Warranties and Certain
Agreements 77
Section 10.10. Failure or Indulgence Not Waiver;
Remedies Cumulative 78
Section 10.11. Severability 78
Section 10.12. Obligations Several; Independent
Nature of Banks' Rights 78
Section 10.13. Headings 78
Section 10.14. Applicable Law, Consent To
Jurisdiction 78
Section 10.15. Successors and Assigns; Subsequent
Holders of Notes 79
Section 10.16. Counterparts; Effectiveness 80
Section 10.17. Judgment Currency 80
EXHIBITS
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B - Form of Opinion of Xxxxx X. Xxxxxxx,
Esq.
General Counsel of the Company
Exhibit C - Form of Opinion of Xxxxx Xxxx & Xxxxxxxx
Exhibit D-1 - Form of Notice of Syndicated
Borrowing
Exhibit D-2 - Form of Notice of Competitive Bid
Borrowing
Exhibit D-3 - Form of Notice of
Conversion/Continuation
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Transfer Supplement
Exhibit G - Form of Loan Assumption Agreement
5-YEAR CREDIT AGREEMENT
5-YEAR CREDIT AGREEMENT, dated as of April 1,
1998, among TEXTRON INC., a Delaware corporation
(together with its successors, the "Company"), the
BANKS signatory hereto (each a "Bank" and collectively
the "Banks"), XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent for the Banks (together
with its successors in such capacity, the
"Administrative Agent") and THE CHASE MANHATTAN BANK,
CITICORP SECURITIES, INC. and DEUTSCHE BANK AG, NEW
YORK BRANCH, as Co-Syndication Agents for the Banks
(together with their successors in such capacity, the
"Co-Syndication Agents").
W I T N E S S E T H
WHEREAS, the Company owns directly or indirectly
all of the outstanding shares of capital stock of each
of the Subsidiary Borrowers;
WHEREAS, the Company desires that the Banks extend
certain credit facilities to the Company and the
Subsidiary Borrowers for the purposes set forth in
Section 2.11; and
WHEREAS, each Bank is willing to extend its
commitment to make loans to the Company and the
Subsidiary Borrowers for such purposes on the terms and
subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises
and the agreements, provisions and covenants herein
contained, the Company, the Banks and the Agents agree
as follows:
ARTICLE 1
Definitions and Accounting Terms
Section 1.1. Definitions. As used in this
Agreement, and unless the context requires a different
meaning, the following terms have the meanings
indicated:
" Absolute Rate" has the meaning set forth in
Section 2.02(c).
"Absolute Rate Auction" means a solicitation of
offers to make Competitive Bid Loans setting forth
Absolute Rates.
"Account" means:
(a) with respect to a Borrower, the account
specified in the Notice of Borrowing or Notice
of Competitive Bid Borrowing which, for Dollars,
shall be with an institution located in New York
City, and, for any Alternative Currency, shall be
with an institution located in the same country as
the Account of the Administrative Agent for the
requested currency; and
(b) with respect to the Administrative Agent
or any Bank, (i) for Dollars, the account
maintained at its New York Office (in the case of
the Administrative Agent) or at its Applicable
Lending Office for Base Rate Loans (in the case of
any Bank) and (ii) for any Alternative Currency,
an account with an institution located in the
country whose currency is the relevant Alternative
Currency or such other country as is mutually
agreed to by the applicable Borrower and the
Administrative Agent, the applicable Borrower and
such Bank, or such Bank and the Administrative
Agent, as the case may be, as shall have been
notified by the Administrative Agent to the Banks,
by such Bank to the applicable Borrower, or by
such Bank to the Administrative Agent, as the case
may be, by not less than four (4) Business Days'
notice.
"Administrative Agent" has the meaning assigned to
that term in the introduction to this Agreement.
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the
form prepared by the Administrative Agent, completed by
such Bank and returned to the Administrative Agent
(with a copy to the Company).
"Affected Bank" means any Bank affected by any of
the events described in Section 2.12(b) or 2.12(c)
hereof.
"Affiliate" means, with respect to any Person, any
Person or group of Persons acting in concert in respect
of the Person in question that, directly or indirectly,
controls or is controlled by or is under common control
with such Person. For the purposes of this definition,
"control" (including, with correlative meanings, the
terms "controlled by" and "under common control with"),
as used with respect to any Person or group of Persons
acting in concert, shall mean the possession, directly
or indirectly, of the power to direct or cause the
direction of management and policies of such Person,
whether through the ownership of voting securities or
by contract or otherwise.
"Agent" means any of the Administrative Agent and
the Co-Syndication Agents, and "Agents" means any two
or more of them.
"Agent's Other Currency Notice" has the meaning
specified in Section 2.03 of this Agreement.
"Alternative Currency" or "Alternative Currencies"
means, with respect to any Loan,
(a) Belgian Francs, British Pounds Sterling,
Canadian Dollars, Deutsche Marks, French Francs,
Italian Lire and Spanish Pesetas, and
(b) any other lawful currency that is freely
transferable and freely convertible into Dollars and
that has been approved by each Bank in accordance with
Section 2.03 of this Agreement.
"Agreement" means this 5-Year Credit Agreement, as
the same may at any time be amended, amended and
restated, supplemented or otherwise modified in
accordance with the terms hereof.
"Applicable Lending Office" means, for any Bank
with respect to its Loans of any particular type and/or
any particular currency, the office, branch or
affiliate of such Bank specified as the booking office
therefor in such Bank's Administrative Questionnaire,
or such other office, branch or affiliate of such Bank
as such Bank may specify from time to time for such
purpose by notice to the Company and the Administrative
Agent.
"Applicable Margin" has the meaning set forth in
Section 2.08.
"Bank" and "Banks" have the respective meanings
assigned to those terms in the introduction to this
Agreement and its or their successors and permitted
assigns.
"Bankruptcy Code" means Title 11 of the United
States Code entitled "Bankruptcy," as from time to time
amended and any successor statutes.
"Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Rate in effect on
such day plus 1/2 of 1%.
"Base Rate Loans" are Syndicated Loans whose
interest rate is based on Base Rate.
"Belgian Franc", "Belgian Francs", or "BF" means
the lawful currency of Belgium.
"BF LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Belgian Francs, an interest rate per annum that is set
forth on the Reuters dealing page BEFIXING (or any page
that may replace such page from time to time) as of
11:00 A.M. (London time) on such Interest Rate
Determination Date for Belgian Franc deposits
comparable in amount to the aggregate principal amount
of such Belgian Franc denominated Loans and having a
tenor equal to the duration of the applicable Interest
Period.
"Bid Margin" has the meaning set forth in Section
2.02(c).
"Board" means the Board of Governors of the
Federal Reserve System.
"Borrower" means each of the Company and each
Subsidiary Borrower.
"Borrowing" means a borrowing of Loans hereunder.
"BP LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
British Pounds Sterling, an interest rate per annum
equal to the rate that is set forth on page 3750 of the
Dow Xxxxx Telerate Service (or any page that may
replace such page from time to time) as of 11:00 A.M.
(London time) on such Interest Rate Determination Date
for British Pound Sterling deposits comparable in
amount to the aggregate principal amount of such
British Pounds Sterling denominated Loans and having a
tenor equal to the duration of the applicable Interest
Period.
"British Pound Sterling", "British Pounds
Sterling" and the sign "BPS" mean the lawful currency of
the United Kingdom.
"Business Day" means a day of the year
(a) on which banks are not required or
authorized by law to close in New York City;
(b) if the applicable Business Day relates
to any Eurocurrency Loan or Competitive Bid
LIBOR Loan, on which each Bank carries on dealings
in the London interbank and foreign exchange
markets; and
(c) if the applicable Business Day relates
to any Loan in a currency other than Dollars,
on which banks are not required or authorized to
close in the city of the jurisdiction of such
currency where the major financial markets for
such jurisdiction are located and in the city of
the jurisdiction of such currency where the
Administrative Agent's Account and the Borrower's
Account are located.
"Canadian Dollar", "Canadian Dollars" or "C$"
means the lawful currency of Canada.
"C$ LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Canadian Dollars, an interest rate per annum equal to
the rate that is set forth on page 3740 of the Dow
Xxxxx Telerate Service (or any page that may replace
such page from time to time) as of 11:00 A.M. (London
time) on such Interest Rate Determination Date for
Canadian Dollar deposits comparable in amount to the
aggregate principal amount of such Canadian Dollar
denominated Loans and having a tenor equal to the
duration of the applicable Interest Period.
"Capital Lease", as applied to any Person, means
any lease of any property (whether real, personal or
mixed) by that Person as lessee which, in conformity
with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Code" means the Internal Revenue Code of 1986, as
from time to time amended. Any reference to the Code
shall include a reference to corresponding provisions
of any subsequent revenue law.
"Commitment" means, at any time any determination
thereof is to be made, the commitment (whether or not
then utilized) of each Bank then in effect to extend
credit hereunder, which initially shall be for each
Bank the amount specified on the signature page hereto
for such Bank.
"Company" has the meaning assigned to that term in
the introduction to this Agreement.
"Competitive Bid Absolute Rate Loan" means a
Competitive Bid Loan made by a Bank pursuant to
Absolute Rate Auction.
"Competitive Bid Loan" means a Loan bearing
interest at such rate and for such interest period, and
on such other terms not inconsistent with the terms of
this Agreement, as the applicable Borrower and the Bank
making such Loan may mutually agree and which Loan is
requested pursuant to a Notice of Competitive Bid
Borrowing.
"Competitive Bid Notes" means the promissory notes
of the Borrowers issued pursuant to Section 2.06(b)
hereto in substantially the form of Exhibit A-2 hereto.
"Competitive Bid LIBOR Loan" means a Competitive
Bid Loan made by a Bank pursuant to a LIBOR Auction.
"Compliance Certificate" means a certificate
substantially in the form annexed hereto as Exhibit E
delivered to the Banks by the Company pursuant to
Section 5.01(b)(i)(B).
"Consolidated EBITDA" means, without duplication,
for any consecutive four fiscal quarter period, the sum
of the amounts for such period of (i) the Company's
Consolidated Net Income, excluding therefrom any
extraordinary items of gain or loss, plus (ii) the
aggregate amount of cash dividends actually received by
the Company or any of its Subsidiaries in respect of
the capital stock of any Finance Company or Insurance
Company and payable out of the net income for such
period in which paid of any such Finance Company or
Insurance Company, plus (iii) the aggregate amounts
deducted in determining Consolidated Net Income for
such period in respect of (a) the provision for taxes
based on income of the Company and its Subsidiaries,
(b) Consolidated Interest Expense and (c) depreciation
and amortization, all as determined on a consolidated
basis for the Company and its Subsidiaries in
conformity with GAAP.
"Consolidated Interest Expense" means, for any
consecutive four fiscal quarter period, total interest
expense (including that attributable to Capital Leases
in accordance with GAAP) of the Company and its
Subsidiaries, all as determined on a consolidated basis
in conformity with GAAP, with respect to all
outstanding Indebtedness of the Company and its
Subsidiaries.
"Consolidated Net Income" means, for any
consecutive four fiscal quarter period, the net income
(or loss) of any Person (for purposes of this
definition "Parent") and its Subsidiaries on a
consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP;
provided that there shall be excluded, the income (or
loss) of any Person accrued prior to the date it
becomes a Subsidiary of Parent or is merged into or
consolidated with Parent or any of its Subsidiaries or
that Person's assets are acquired by Parent or any of
its Subsidiaries.
"Consolidated Net Worth" means, as at any date of
determination, the sum of the capital stock and
additional paid-in capital plus/minus marketable equity
securities valuation adjustment plus retained earnings
(or minus accumulated deficit) plus $679,500,000 less
the cost of treasury stock of the Company and its
Subsidiaries on a consolidated basis (but excluding the
effects of foreign currency translation adjustments
under Financial Accounting Standards Board Statement
No. 52) calculated in conformity with GAAP.
"Contractual Obligation", as applied to any
Person, means any provision of any security issued by
that Person or of any material indenture, mortgage,
deed of trust or other similar instrument of that
Person under which Indebtedness is outstanding or
secured or by which that Person or any of its
properties is bound or to which that Person or any of
its properties is subject.
"Co-Syndication Agents" has the meaning assigned
to that term in the introduction to this Agreement.
"Currency Equivalent" means, on any date of
determination, (a) the equivalent in Dollars of any
amount of an Alternative Currency determined at the
rate of exchange quoted by the Administrative Agent in
New York City, at 11:00 A.M. (New York City time) on
the date on which such equivalent is to be determined
for the spot purchase in the New York foreign exchange
market for such amount of Alternative Currency with
Dollars, (b) the equivalent in any Alternative Currency
of any amount of any other Alternative Currency
determined at the rate of exchange quoted by the
Administrative Agent in New York City, at 11:00 A.M.
(New York City time) on the date on which such
equivalent is determined for the spot purchase in the
New York foreign exchange market for such amount for
the Alternative Currency with such other Alternative
Currency, and (c) the equivalent in any Alternative
Currency of any amount of Dollars determined, at the
rate of exchange quoted by the Administrative Agent in
New York City, at 11:00 A.M. (New York City time) on
the date on which such equivalent is to be determined
for the spot purchase in the New York foreign exchange
market for such amount of Dollars with such Alternative
Currency.
"Designation Date" means, with respect to any
Subsidiary of the Company, the date on which the
Company designates such Subsidiary as a Subsidiary
Borrower.
"Deutsche Xxxx", "Deutsche Marks" and "DM" mean
the lawful currency of the Federal Republic of Germany.
"DM LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Deutsche Marks, an interest rate per annum equal to the
rate that is set forth on page 3750 of the Dow Xxxxx
Telerate Service (or any other page that may replace
such page from time to time) as of 11:00 A.M. (London
time) on such Interest Rate Determination Date for
Deutsche Xxxx deposits comparable in amount to the
aggregate principal amount of such Deutsche Xxxx
denominated Loans and having a tenor equal to the
duration of the applicable Interest Period.
"Dollar", "Dollars" and the sign "$" mean the
lawful currency of the United States.
"Effective Date" has the meaning assigned to that
term in Section 10.16 hereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as from time to time amended, and
any successor statute.
"ERISA Affiliate" means, with respect to any
Person, any trade or business (whether or not
incorporated) which, together with such Person, is
under common control as described in Section 414(c) of
the Code or is a member of a controlled group, as
defined in Section 414(b) of the Code, which includes
such Person.
"Euro" means the currency of participating member
states of the European Union that adopt a single
currency in accordance with the Treaty on European
Union signed February 7, 1992.
"Eurocurrency Rate" means, for any Interest Rate
Determination Date either (a) (i) for Loans denominated
in Dollars, US LIBOR; (ii) for Loans denominated in
French Francs, FF LIBOR; (iii) for Loans denominated in
Deutsche Xxxxx, XX LIBOR; (iv) for Loans denominated in
Italian Lire, IL LIBOR; (v) for Loans denominated in
British Pounds Sterling, BP LIBOR; (vi) for Loans
denominated in Belgian Francs, BF LIBOR, (vii) for
Loans denominated in Canadian Dollars, C$ LIBOR, (viii)
for Loans denominated in Spanish Pesetas, SP LIBOR; and
(ix) for Loans denominated in any other Alternative
Currency, an interest rate per annum equal to the rate
set forth on the applicable page of the Dow Xxxxx
Telerate Service for such currency as of 11:00 A.M.
(London time) on the second Business Day prior to the
first day of the applicable Interest Period for
deposits in the applicable currency comparable in
amount to the then outstanding principal amount of such
loan denominated in the applicable currency and having
a tenor equal to the duration of the applicable
Interest Period; or (b) if a rate cannot be determined
pursuant to clause (a) above, a rate per annum equal to
the arithmetic average (rounded upwards to the nearest
1/16 of 1%) of the offered quotation, if any, to first
class banks in the Eurocurrency market by each of the
Reference Banks for deposits in the applicable currency
with maturities comparable to the Interest Period for
which such Eurocurrency Rate will apply as of
approximately 10:00 A.M. (New York time) two Business
Days prior to the commencement of such Interest Period.
If any Reference Bank fails to provide its offered
quotation to the Administrative Agent, the Eurocurrency
Rate shall be determined on the basis of the offered
quotation(s) by the other Reference Bank(s).
"Eurocurrency Rate Loans" means Syndicated Loans
or portions thereof during the period in which such
Loans bear interest at rates determined in accordance
with Section 2.08(a)(i)(A) hereof.
"Eurocurrency Reserve Percentage" means, for any
day, that percentage (expressed as a decimal) which is
in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to
which the interest rate on Eurocurrency Loans is
determined or any category of extensions of credit or
other assets which includes loans by a non-United
States office of any Bank to United States residents).
"Event of Default" has
the meaning assigned to that term in Section 7
hereof.
"Exchange Act" means the Securities Exchange Act
of 1934, as from time to time amended, and any
successor statutes.
"Existing Subordinated Debt" means the
indebtedness of the Company outstanding on the date of
this Agreement pursuant to the Indenture dated as of
May 1, 1985 with The Chase Manhattan Bank, N.A., as
Trustee, as the same has been supplemented by the First
Supplemental Subordinated Indenture and as in effect on
the date of this Agreement.
"Federal Funds Rate" means on any one day the
weighted average of the rate on overnight Federal funds
transactions with members of the Federal Reserve System
only arranged by Federal funds brokers as published as
of such day by the Federal Reserve Bank of New York,
provided that if such day is not a Business Day, the
Federal Funds Rate shall be measured as of the
immediately preceding Business Day.
"FF LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
French Francs, an interest rate per annum equal to the
rate that is set forth on page 3740 of the Dow Xxxxx
Telerate Service (or any other page that may replace
such page from time to time) as of 11:00 A.M. (London
time) on such Interest Rate Determination Date for
French Franc deposits comparable in amount to the
aggregate principal amount of such French Franc
denominated Loans and having a tenor equal to the
duration of the applicable Interest Period.
"Final Maturity Date" means April 1, 2003.
"Finance Company" means any subsidiary of the
Company which is primarily engaged in the business of a
finance company.
"French Franc", "French Francs" and "FF" means the
lawful currency of the Republic of France.
"Funding Date" means the date of the funding of a
Loan made pursuant to a Notice of Borrowing but does
not mean the date of any conversion or continuation of
the interest rate applicable to any Loan pursuant to a
Notice of Conversion/Continuation.
"GAAP" means generally accepted accounting
principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American
Institute of Certified Public Accountants and
statements and pronouncements of the Financial
Accounting Standards Board as in effect on January 3,
1998 and applicable to and used by the Company in the
preparation of the audited financial statements of the
Company included in the Company's report on Form 10-K
for the fiscal year ended January 3, 1998.
"Governmental Authority" means any nation or
government, any state or other political subdivision
thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"IL LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Italian Lire, an interest rate per annum equal to the
rate that is set forth on page 3740 of the Dow Xxxxx
Telerate Service (or any other page that may replace
such page from time to time) as of 11:00 A.M. (London
time) on such Interest Rate Determination Date for
Italian Lire deposits comparable in amount to the
aggregate principal amount of such Italian Lire
denominated Loans and having a tenor equal to the
duration of the applicable Interest Period
"Indebtedness", as applied to any Person, means,
without duplication, (i) all indebtedness for borrowed
money of that Person, (ii) that portion of obligations
with respect to Capital Leases which is properly
classified as a liability on a balance sheet of that
Person in conformity with GAAP, (iii) notes payable of
that Person and drafts accepted by that Person
representing extensions of credit whether or not
representing obligations for borrowed money, (iv) any
obligation of that Person owed for all or any part of
the deferred purchase price of property or services
which purchase price is (a) due more than twelve months
from the date of incurrence of the obligation in
respect thereof, or (b) evidenced by a note or similar
written instrument, (v) all indebtedness secured by any
Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person and (vi) any
guarantee of that Person, direct or indirect, of any
indebtedness, note payable, draft accepted, or
obligation described in clauses (i)-(v) above of any
other Person.
"Initial Loans" means the initial Loans made under
this Agreement.
"Insurance Company" means any subsidiary of the
Company which is primarily engaged in the business of
an insurance company.
"Interest Payment Date" means, (x) with respect to
any Eurocurrency Rate Loan, the last day of each
Interest Period applicable to such Eurocurrency Rate
Loan; provided that in the case of each Interest Period
of six, nine or twelve months, "Interest Payment Date"
shall also include each Interest Period Anniversary
Date (or if such day is not a Business Day, then the
next succeeding Business Day) for such Interest Period
and (y) in the case of any Base Rate Loan, the last
Business Day of each calendar quarter.
"Interest Period" means any interest period
applicable to a Eurocurrency Rate Loan or Competitive
Bid Loan as determined pursuant to Section 2.08(b)
hereof.
"Interest Period Anniversary Date" means, for each
Interest Period applicable to a Eurocurrency Rate Loan
which is six, nine or twelve months, each three-month
anniversary of the commencement of that Interest
Period.
"Interest Rate Determination Date" means each date
for calculating the Eurocurrency Rate for purposes of
determining the interest rate in respect of an Interest
Period. The Interest Rate Determination Date shall be
the second Business Day prior to the first day of the
related Interest Period.
"Italian Lira", "Italian Lire" or "IL" means the
lawful currency of the Republic of Italy.
"LIBOR Auction" means a solicitation of offers to
make Competitive Bid Loans setting forth Bid Margins.
"Lien" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind (including
any conditional sale or other title retention
agreement, any lease in the nature thereof, and any
agreement to give any security interest).
"Loans" means one or more of the Syndicated Loans,
Competitive Bid Loans or any combination thereof
whether denominated in Dollars or an Alternative
Currency.
"Margin Stock" has the meaning assigned to that
term in Regulation U of the Board as in effect from
time to time.
"Material Adverse Effect" means a material adverse
effect on the business, operations, properties, assets
or financial condition of the Company and its
Subsidiaries, taken as a whole.
"Xxxxxx means Xxxxxx Guaranty Trust Company of New
York, and its successors.
"Multiemployer Plan" has the meaning assigned to
that term in Section 4001(a)(3) of ERISA.
"New York Office" means, for the Administrative
Agent, the office in New York City specified in or
pursuant to Section 10.08.
"1993 Credit Agreement" has the meaning assigned
to that term in Section 3.01(d).
"Notes" means the Revolving Notes, the Competitive
Bid Notes, or any combination thereof.
"Notice of Borrowing" means any Notice of
Syndicated Borrowing, Notice of Competitive Bid
Borrowing or any combination thereof.
"Notice of Competitive Bid Borrowing" has the
meaning assigned to that term in Section 2.02(b) hereof
and shall be substantially in the form of Exhibit D-2
hereof.
"Notice of Conversion/Continuation" means any
notice delivered pursuant to Section 2.05(a) hereof and
shall be substantially in the form of Exhibit D-3
hereto.
"Notice of Syndicated Borrowing" has the meaning
assigned to that term in Section 2.01(b) hereof and
shall be substantially in the form of Exhibit D-1
hereto.
"Officer's Certificate" means, as applied to any
corporation, a certificate executed on behalf of such
corporation by its Chairman of the Board (if an
officer), its President, any Vice President of such
corporation, its Chief Financial Officer, its Treasurer
or any Assistant Treasurer of such corporation.
"Other Currency Notice" has the meaning specified
in Section 2.03.
"Other Currency Obligation" has the meaning
specified in Section 7.11.
"PBGC" means the Pension Benefit Guaranty
Corporation created by Section 4002(a) of ERISA or any
successor thereto.
"Pension Plan" means any plan (other than a Multi
employer Plan) described in Section 4021(a) of ERISA
and not excluded pursuant to Section 4021(b) thereof,
which may be, is or has been established or maintained,
or to which contributions may be, are or have been made
by the Company or any of its ERISA Affiliates or as to
which the Company would be considered as a
"contributing sponsor" for purposes of Title IV of
ERISA at any relevant time.
"Permitted Encumbrances" means:
(i) Liens for taxes, assessments or
governmental charges or claims the payment of
which is not at the time required by
subsection 5.03;
(ii) Statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics,
materialmen and other liens imposed by law
incurred in the ordinary course of business
for sums not yet delinquent or being
contested in good faith, if such reserve or
other appropriate provision, if any, as shall
be required by generally accepted accounting
principles then in effect, shall have been
made therefor;
(iii) Liens (other than any Lien
imposed by ERISA) incurred or deposits made
in the ordinary course of business in
connection with workers' compensation,
unemployment insurance and other types of
social security, or to secure the performance
of tenders, statutory obligations, bids,
leases, government contracts, performance and
return-of-money bonds and other similar
obligations (exclusive of obligations for the
payment of borrowed money);
(iv) Any attachment or judgment Lien
individually or in the aggregate not in
excess of $50,000,000 unless the judgment it
secures shall, within 30 days after the entry
thereof, not have been discharged or
execution thereof stayed pending appeal, or
shall not have been discharged within 30 days
after the expiration of any such stay;
(v) Leases or subleases granted to
others not interfering in any material
respect with the business of the Company or
any of its Subsidiaries;
(vi) Easements, rights-of-way,
restrictions, minor defects or irregularities
in title and other similar charges or
encumbrances not interfering in any material
respect with the ordinary conduct of the
business of the Company or any of its
Subsidiaries;
(vii) Any interest or title of a
lessor under any lease;
(viii) Liens arising from UCC
financing statements regarding leases; and
(ix) Liens in favor of customs and
revenue authorities arising as a matter of
law to secure payment of customs duties in
connection with the importation of goods
incurred in the ordinary course of business.
"Person" means and includes natural persons,
corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other
organizations, whether or not legal entities, and any
Governmental Authority.
"Potential Event of Default" means a condition or
event which, after notice or lapse of time or both,
would constitute an Event of Default if that condition
or event were not cured or removed within any
applicable grace or cure period.
"Prime Rate" shall mean the rate which Xxxxxx
announces from time to time as its prime rate, as in
effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer.
Xxxxxx may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.
"Pro Rata Share or pro rata Share" means, when
used with reference to any Bank and any described
aggregate or total amount, the percentage designated as
such Bank's Pro Rata Share set forth under the name of
such Bank on the applicable signature page of this
Agreement.
"Redenominate", "Redenomination" and
"Redenominated" each refers to redenomination of any
Loan in an Alternative Currency into Dollars or any
other Alternative Currency pursuant to Sections 2.12(m)
and 7.11.
"Reference Banks" means Xxxxxx, The Xxxxx
Manhattan Bank, Citibank, N.A., and Deutsche Bank AG.
"Regulation D" means Regulation D of the Board as
from time to time in effect and any successor to all or
a portion thereof establishing reserve requirements.
"Reportable Event" means a "reportable event"
described in Section 4043(b) of ERISA or in the
regulations thereunder notice of which to PBGC is
required within 30 days after the occurrence thereof,
or receipt of a notice of withdrawal liability with
respect to a Multiemployer Plan pursuant to Section
4204 of ERISA.
"Required Banks" means, as at any time any
determination thereof is to be made, the Banks holding
at least 66-2/3% of the aggregate Commitments of all
the Banks or, if no Commitments are in effect, 66-2/3%
of Loans outstanding.
"Restricted Subsidiary" means each Subsidiary (or
a group of Subsidiaries that would constitute a
Restricted Subsidiary if consolidated and which are
engaged in the same or related lines of business) of
the Company now existing or hereafter acquired or
formed by the Company which (x) for the most recent
fiscal year of the Company, accounted for more than 5%
of the consolidated revenues of the Company and its
Subsidiaries, or (y) as at the end of such fiscal year,
was the owner of more than 5% of the consolidated
assets of the Company and its Subsidiaries. For
purposes of this definition, the proviso to the
definition of Subsidiary shall not be applicable.
"Revolving Notes" means the promissory notes of
the Borrowers issued pursuant to Section 2.06(a) hereof
in substantially the form of Exhibit A-1 hereto.
"Securities Act" means the Securities Act of 1933,
as from time to time amended, and any successor
statutes.
"Specified Currency" has the meaning specified in
Section 10.17 of this Agreement.
"SP LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Spanish Pesetas, an interest rate per annum equal to
the rate that is set forth on page 3740 of the Dow
Xxxxx Telerate Service (or any other page that may
replace such page from time to time) as of 11:00 A.M.
(London time) on such Interest Rate Determination Date
for Spanish Peseta deposits comparable in amount to the
aggregate principal amount of such Spanish Peseta
denominated Loans and having a tenor equal to the
duration of the applicable Interest Period.
"Spanish Peseta", "Spanish Pesetas" or "SP" means
the lawful currency of the Kingdom of Spain.
"Subsidiary" means, in respect to any Person, any
corporation, association or other business entity of
which more than 50% of the total voting power of shares
of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or
a combination thereof; provided, however, that no
Finance Company or Insurance Company or any Subsidiary
of any Finance Company or Insurance Company shall be
treated as a Subsidiary of the Company.
"Subsidiary Borrower" means any Subsidiary of the
Company designated as such in writing by the Company;
provided that such Subsidiary shall enter into a Loan
Assumption Agreement in the form annexed hereto as
Exhibit G appropriately completed and that no Loan
shall be made to such Subsidiary until Section 3.04 has
been complied with as to such Subsidiary.
"Syndicated Loan" means a Loan which is made as
part of a Borrowing, is made collectively by the Banks
based on each Bank's Pro Rata Share of such Loan, is
made as either a Base Rate Loan or a Eurocurrency Rate
Loan and is requested pursuant to a Notice of
Syndicated Borrowing.
"Termination Event" means (i) a Reportable Event
with respect to any Pension Plan, or (ii) the
withdrawal of the Company or any of its ERISA
Affiliates from a Pension Plan during a plan year in
which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Pension Plan (including
any such notice with respect to a Pension Plan
amendment referred to in Section 4041(e) of ERISA), or
(iv) the institution of proceedings to terminate a
Pension Plan by the PBGC, or (v) any other event or
condition which, to the best knowledge of the Company,
would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee
to administer, any Pension Plan.
"Textron Affiliate," as applied to the Company,
means any Person or Persons directly or indirectly
controlling the Company. For purposes of this
definition, controlling, as applied to the Company,
means the possession, directly or indirectly, of the
power to direct or cause the direction of the
management and policies of the Company, whether through
the ownership of voting securities or by contract or
otherwise. Neither any Bank nor any parent of any Bank
nor any Subsidiary of any such Bank or parent shall be
treated as a Textron Affiliate.
"Textron Affiliate Amount" means, as at any date
of determination, the then aggregate outstanding amount
of all loans and/or advances to any Textron Affiliate
from the Company or any Subsidiary of the Company
(without giving effect to the proviso to the definition
of Subsidiary).
"Total Commitment" means, as at any date of
determination, the aggregate Commitments of all Banks
then in effect (as such Commitments may be reduced from
time to time pursuant to Section 2.10(a) hereof). The
original amount of the Total Commitment is
$500,000,000.
"Type" means, in respect of any Syndicated Loan,
any type of Syndicated Loan, i.e., either a Base Rate
Loan or a Eurocurrency Rate Loan.
"United States Dollars" or "U.S. Dollars" or "$"
means such coin or currency of the United States of
America as at the time shall be legal tender for the
payment of public and private debts.
"US LIBOR" means, with respect to any Interest
Rate Determination Date for any Loans denominated in
Dollars, an interest rate per annum equal to the rate
that is set forth on page 3750 of the Dow Xxxxx
Telerate Service (or any other page that may replace
such page from time to time) as of 11:00 A.M. (London
time) on such Interest Rate Determination Date for
Dollar deposits comparable in amount to the aggregate
principal amount of such Dollar denominated Loans and
having a tenor equal to the duration of the applicable
Interest Period.
Section 1.2. Accounting Terms. For the purposes
of this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them
in conformity with GAAP.
Section 1.3. Currency Equivalents. For purposes
of determining in any currency any amount outstanding
in another currency, the Currency Equivalent of such
second currency on the date of determination shall be
used. If any reference to any Loan or other amount
herein would include amounts in Dollars and in one or
more Alternative Currencies or to an amount in Dollars
that in fact is in one or more Alternative Currencies,
such reference (whether or not it expressly so
provides) shall be deemed to refer, to the extent it
includes an amount in any Alternative Currency, to the
Currency Equivalent in Dollars of such amount at the
time of determination.
ARTICLE 2
Amounts and Terms of Commitments and Loans; Notes
Section 2.1. Revolving Loans.
(a) Commitments. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of each Borrower herein
set forth, each Bank hereby severally agrees to lend to
the Borrowers from time to time during the period from
and including the Effective Date to but not including
the Final Maturity Date its pro rata Share of the Total
Commitment. Each Bank's Commitment and the Total
Commitment shall expire in full on the Final Maturity
Date.
Amounts borrowed under this Section 2.01(a) may,
subject to the limitations set forth in this Agreement,
be repaid and, up to but excluding the Final Maturity
Date, be reborrowed. The Syndicated Loans and all
other amounts owed hereunder with respect to the
Syndicated Loans shall be paid in full no later than
the Final Maturity Date.
Borrowings on any Funding Date with respect to a
Syndicated Loan under this Section 2.01(a) shall be in
Dollars, or in the requested Alternative Currency, in
an aggregate minimum amount of $10,000,000 (or the
Currency Equivalent thereof in any Alternative
Currency) and integral multiples, in the case of Loans
denominated in Dollars, of $5,000,000 in excess of that
amount and, in the case of Loans denominated in an
Alternative Currency, in integral multiples of
5,000,000 units or, in either case, if less, the
unutilized amount of the Total Commitment.
Notwithstanding the foregoing, (i) no Syndicated Loan
may be borrowed by any Borrower if the aggregate
principal amount of all Loans outstanding hereunder
denominated in Dollars together with the Currency
Equivalent in Dollars of all Loans denominated in
Alternative Currencies, after giving effect to the Loan
so requested and all other Loans then requested which
have not yet been funded, shall exceed the Total
Commitment then in effect and (ii) no Syndicated Loan
may be borrowed by any Borrower in an Alternative
Currency if the Currency Equivalent in Dollars of the
aggregate principal amount of all Syndicated Loans
outstanding hereunder denominated in Alternative
Currencies, after giving effect to the Loan so
requested and all other Loans then requested which have
not yet been funded, shall exceed $200,000,000.
For purposes of determining (A) whether the making
of any Borrowing will cause the outstanding aggregate
principal amount of Loans denominated in Dollars
together with the Currency Equivalent in Dollars of all
Loans denominated in Alternative Currencies to exceed
the Total Commitment or (B) whether the making of any
Loan in an Alternative Currency will cause the Currency
Equivalent in Dollars of the outstanding aggregate
principal amount of Loans denominated in Alternative
Currencies to exceed $200,000,000, the Administrative
Agent will make such determinations three (3) Business
Days in advance of a proposed Borrowing consisting of
Eurocurrency Rate Loans and/or Competitive Bid LIBOR
Loans and one (1) Business Day in advance of a proposed
Borrowing consisting of Base Rate Loans and/or
Competitive Bid Absolute Rate Loans calculating the
Currency Equivalent of any Loan denominated in an
Alternative Currency for purposes of such a
determination at the rate of exchange in effect on such
date.
(b) Notice of Syndicated Borrowing. Subject to
Section 2.01(a), whenever any Borrower desires to
borrow under this Section 2.01, it shall deliver to the
Administrative Agent a Notice of Syndicated Borrowing
(which may be telephonic, confirmed promptly in
writing) no later than 10:30 A.M. (New York time) (x)
in the case of a Base Rate Loan, on the proposed
Funding Date, (y) in the case of a Eurocurrency Rate
Loan denominated in Dollars, three Business Days in
advance of the proposed Funding Date and (z) in the
case of a Eurocurrency Rate Loan denominated in an
Alternative Currency, four Business Days in advance of
the proposed Funding Date. The Notice of Syndicated
Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of
the proposed Loans, (iii) whether such Loans are to
consist of Base Rate Loans or Eurocurrency Rate Loans
or a combination thereof and the amounts thereof, (iv)
the currency of such Loans, (v) the Account of the
Borrower for such Loans, (vi) the Interest Period(s)
therefor and (vii) the aggregate principal amount of
Loans outstanding in Dollars and in each Alternative
Currency, after giving effect to the proposed Loan and
all other Loans then requested which have not yet been
funded.
Neither the Administrative Agent nor any Bank
shall incur any liability to any Borrower in acting
upon any telephonic notice referred to above which the
Administrative Agent believes in good faith to have
been given by a duly authorized officer or other person
authorized to borrow on behalf of such Borrower or for
otherwise acting in good faith under this
Section 2.01(b) and, upon funding of Syndicated Loans
by the Banks in accordance with this Agreement pursuant
to any telephonic notice, such Borrower shall have
borrowed such Loans hereunder.
Except as provided in Sections 2.01(c)
and 2.12(d), a Notice of Syndicated Borrowing for a
Eurocurrency Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and the applicable
Borrower shall be bound to make a borrowing in
accordance therewith.
(c) Disbursement of Funds. Promptly after receipt
of a Notice of Syndicated Borrowing pursuant to
Section 2.01(b) (or telephonic notice in lieu thereof)
with respect to a Syndicated Loan, the Administrative
Agent shall notify each Bank of the proposed borrowing.
Each Bank shall make its pro rata Share of the amount
of such Loans available to the Administrative Agent in
the applicable currency by causing funds in such amount
to be credited to the Account of the Administrative
Agent in same day funds (or, in the case of any
Alternative Currency, in such funds as may then be
customary for the settlement of international
transactions in such Alternative Currency) not later
than 12:00 Noon (local time in the city in which the
Administrative Agent's Account is located) on the
Funding Date. Such Loans of a Bank shall be equal to
such Bank's pro rata Share of the aggregate amount of
all such Loans requested by the applicable Borrower
pursuant to the applicable Notice of Syndicated
Borrowing. Upon satisfaction or waiver of the
conditions precedent specified in Section 3.01 (in the
case of the Initial Loans) and Sections 3.02 and, if
applicable, 3.04 (in the case of all Loans) the
Administrative Agent shall make the proceeds of such
Loans available to the applicable Borrower by causing
an amount of funds equal to the proceeds of all such
Loans received by the Administrative Agent to be
credited to the Account of such Borrower in same day
funds (or, in the case of any Alternative Currency, in
such funds as may then be customary for the settlement
of international transactions in such Alternative
Currency).
In the case of a proposed Borrowing consisting of
Eurocurrency Rate Loans in an Alternative Currency,
each Bank shall be obligated (subject to the
satisfaction of all conditions precedent as specified
in Article 3 of this Agreement) to make its
Eurocurrency Rate Loan in the requested Alternative
Currency unless such Bank shall deliver to the
Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day before the
requested date of such Borrowing a notice that it is
unable to fund its pro rata Share of such Borrowing in
such currency, which notice shall be notified
immediately by the Administrative Agent to the
requesting Borrower. If any Bank shall have so
provided to the Administrative Agent such notice, the
Administrative Agent shall promptly notify the
requesting Borrower and each Bank that a Bank has
provided such notice, whereupon such Borrower may, by
notice to the Administrative Agent not later than 2:00
P.M. (New York City time) on the third Business Day
before the requested date of such Eurocurrency Rate
Loan, withdraw the Notice of Borrowing relating to such
Borrowing. If the requesting Borrower does so withdraw
such Notice of Borrowing, the Borrowing requested in
such Notice of Borrowing shall not occur and the
Administrative Agent shall promptly so notify each
Bank. If the requesting Borrower does not so withdraw
such Notice of Borrowing, the Administrative Agent
shall promptly so notify each Bank and such Notice of
Borrowing shall be deemed to be a Notice of Borrowing
which requests a Eurocurrency Rate Loan denominated in
Dollars in an aggregate amount equal to the Currency
Equivalent in Dollars of the amount of such Alternative
Currency specified in such Notice of Borrowing; and in
such notice by the Administrative Agent to each Bank
the Administrative Agent shall state such aggregate
amount of Dollars and such Bank's pro rata Share of
such Eurocurrency Rate Loan.
Except as set forth in the immediately preceding
paragraph, unless the Administrative Agent shall have
been notified by any Bank (which notice may be
telephonic, confirmed promptly in writing) prior to any
Funding Date in respect of any Syndicated Loan that
such Bank does not intend to make available to the
Administrative Agent such pro rata Share of such Loan
on such Funding Date, the Administrative Agent may
assume that such Bank has made such amount available to
the Administrative Agent on such Funding Date and the
Administrative Agent in its sole discretion may, but
shall not be obligated to, make available to the
applicable Borrower a corresponding amount on such
Funding Date. If such corresponding amount is not in
fact made available to the Administrative Agent by such
Bank, the Administrative Agent shall be entitled to
recover such corresponding amount on prompt demand from
such Bank together with interest thereon, for each day
from such Funding Date until the date such amount is
paid to the Administrative Agent at the customary rate
set by the Administrative Agent for the correction of
errors among banks for three Business Days and
thereafter at the Base Rate. If such Bank does not pay
such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the
applicable Borrower and such Borrower shall immediately
pay such corresponding amount to the Administrative
Agent. Nothing in this Section 2.01(c) shall be deemed
to relieve any Bank from its obligation to fulfill its
Commitment hereunder or to prejudice any rights which
such Borrower may have against any Bank as a result of
any default by such Bank hereunder.
Section 2.2. Competitive Bid Loans. (ai Subject
to and upon the terms and conditions herein set forth,
each Bank severally agrees that any Borrower may incur
a Competitive Bid Loan in Dollars or in an Alternative
Currency pursuant to a Notice of Competitive Bid
Borrowing from time to time on and after the Effective
Date and prior to the date which is the Business Day
preceding the date which is 30 days prior to the Final
Maturity Date, provided that the aggregate principal
amount of all Loans outstanding hereunder denominated
in Dollars together with the Currency Equivalent in
Dollars of all Loans denominated in Alternative
Currencies, after giving effect to the Loan so
requested and all other Loans then requested which have
not yet been funded, will not exceed the Total
Commitment then in effect. The determination required
by the immediately preceding sentence shall be made by
the Administrative Agent in accordance with the last
paragraph of Section 2.01(a). Within the foregoing
limits and subject to the conditions set forth in this
Agreement, Competitive Bid Loans may be repaid and
reborrowed in accordance with the provisions hereof.
Competitive Bid Loans made on any Funding Date shall be
in Dollars, or in the requested Alternative Currency,
in an aggregate minimum amount of $10,000,000 (or the
Currency Equivalent thereof in any Alternative
Currency) and in integral multiples in the case of
Loans denominated in Dollars, of $5,000,000 in excess
of such amount and, in the case of Loans denominated in
an Alternative Currency, in integral multiples of
5,000,000 units.
(b) Whenever the Company or a Subsidiary Borrower
desires to incur a Competitive Bid Loan, it shall (i)
in the case of the Company, deliver to the
Administrative Agent and each Bank, and (ii) in the
case of a Subsidiary Borrower, deliver to the Company
(which shall deliver to the Administrative Agent and
each Bank), a Notice of Competitive Bid Borrowing, such
notice to specify in each case (A) the date of the
proposed Competitive Bid Loan(s), (B) the aggregate
amount of the proposed Competitive Bid Loan(s), (C) the
maturity date for repayment of each Competitive Bid
Loan to be made as part of such Competitive Bid Loans
(each of which maturity dates may not be later than the
Business Day prior to the Final Maturity Date), (D) the
currency of the proposed Competitive Bid Loan(s) (which
shall be Dollars or, in the case of a LIBOR Auction, an
Alternative Currency), (E) the Account of the Borrower
for such Loan(s), (F) the interest payment date or
dates relating thereto, (G) whether the Competitive Bid
Loan(s) are to be Absolute Rate Loans or LIBOR Loans,
(H) the aggregate principal amount of Loans outstanding
in Dollars and in each Alternative Currency after
giving effect to the proposed Competitive Bid Loan(s)
and all other Loans then requested which have not yet
been funded and (I) any other terms to be applicable to
such Competitive Bid Loan(s). A Notice of Competitive
Bid Borrowing must be received no later than 11:00 A.M.
(New York City time) on (i) the fifth Business Day
prior to the date of the Borrowing proposed therein, in
the case of a LIBOR Auction or (ii) the Business Day
next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction. No Notice of
Competitive Bid Borrowing shall be given earlier than
three Business Days subsequent to the making of the
last Competitive Bid Loan.
(c) Each Bank shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Loans to the applicable Borrower as
part of such proposed Competitive Bid Loan(s) by
notifying the Company, not later than (i) 2:00 P.M.
(New York City time) on the fourth Business Day prior
to the proposed date of Borrowing, in the case of a
LIBOR Auction and (ii) 10:00 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (each such date being hereinafter
referred to as a "Reply Date"), of (i) the minimum
amount and maximum amount of each Competitive Bid Loan
which such Bank would be willing to make as part of
such proposed Competitive Bid Loan(s) (which amounts
may, subject to the provisions of Section 2.02(a),
exceed such Bank's Commitment); provided that the
minimum amount of any Bank's bid shall be at least
$5,000,000 (or, in the case of a Competitive Bid Loan
denominated in an Alternative Currency, the Currency
Equivalent thereof in such Alternative Currency) (ii)
in the case of a LIBOR Auction, the margin above or
below the applicable Eurocurrency Rate (the "Bid
Margin") offered for each such Competitive Bid Loan,
expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from
such base rate and (iii) in the case of an Absolute
Rate Auction, the rate of interest per annum (specified
to the nearest 1/10,000th of 1%) (the " Absolute Rate")
offered for each such Competitive Bid Loan. If any
Bank shall not notify the Company, before 2:00 P.M. or
10:00 a.m. (New York City time), as the case may be, on
the Reply Date of its offer of a Competitive Bid Loan,
such Bank shall be deemed not to be making an offer
with respect to such Competitive Bid Loan.
(d) The Company shall, in turn, before 11:00 A.M.
(New York City time) on (i) the third Business Day
prior to the proposed date of Borrowing, in the case of
a LIBOR Auction or (ii) the Reply Date, in the case of
an Absolute Rate Auction either
(A) cancel such Competitive Bid Loan by
giving the Administrative Agent and each Bank
notice to that effect (whereupon such
Competitive Bid Loan will not be made), or
(B) accept one or more of the offers made
by any Bank or Banks pursuant to
Section 2.02(c), in its sole discretion, by
giving notice to the Administrative Agent and
such Bank of the amount of each Competitive
Bid Loan (which amount shall be equal to or
greater than the minimum amount, and equal to
or less than the maximum amount, notified to
the Company by such Bank or Banks for such
Competitive Bid Loan pursuant to
Section 2.02(c)) to be made by such Bank as
part of such Competitive Bid Loan, and reject
any remaining offers made by Banks pursuant
to Section 2.02(c) above by giving the
Administrative Agent and such Bank notice to
that effect.
(e) On the Funding Date of each Competitive Bid
Loan, each Bank required to participate therein will
make available its share of such Competitive Bid Loan
(as specified in Section 2.02(d)) by causing funds in
such amount to be credited to the Account of the
Borrower in same day funds (or, in the case of any
Alternative Currency, in such funds as may then be
customary for the settlement of international
transactions in such Alternative Currency) not later
than 12:00 Noon (local time in the city in which the
Borrower's Account is located).
(f) Each Competitive Bid Loan shall be payable on
the maturity date specified in the Notice of
Competitive Bid Borrowing relating to such Competitive
Bid Loan.
Section 2.3. Notices of Other Currencies.
At any time, and from time to time, any Borrower
may request that a lawful currency, in addition to
Belgian Francs, British Pounds Sterling, Canadian
Dollars, Deutsche Marks, French Francs, Italian Lire
and Spanish Pesetas, which is freely transferable and
freely convertible into Dollars be made an "Alternative
Currency." Any such request shall be made by such
Borrower to the Administrative Agent and shall specify
the currency or currencies to be considered for
addition to the list of Alternative Currencies (each
such request being an "Other Currency Notice"). Upon
receipt of an Other Currency Notice, the Administrative
Agent shall give each Bank prompt notice thereof by
telecopier (the "Agent's Other Currency Notice"), which
notice shall be in no event later than one Business Day
after receipt of such Other Currency Notice. Within
ten Business Days of receipt of the Agent's Other
Currency Notice, each Bank shall notify the
Administrative Agent whether it consents to the
addition of such other currency or currencies to the
list of Alternative Currencies. If any Bank does not
respond to an Agent's Other Currency Notice, it shall
be deemed not to have consented to any such addition.
At the end of such ten Business Day period, the
Administrative Agent shall notify the requesting
Borrower and each Bank as to whether all the Banks have
consented to the proposed addition and, in the event
that all of the Banks have so consented, as to the
applicable page on the Dow Xxxxx Telerate Service from
which the Eurocurrency Rate for such currency shall be
calculated. If all of the Banks have so consented,
such currency or currencies shall be considered an
"Alternative Currency" for purposes of this Agreement;
otherwise, it or they shall not. No Borrower shall
request any Loan in any currency which is the subject
of an Other Currency Notice until such currency has
been made an Alternative Currency pursuant to this
Section.
Section 2.4. Substitution of Euro for National
Currency.
If any Alternative Currency is replaced by the
Euro, unless otherwise agreed by the Company, the
Administrative Agent and the Banks, the Euro may be
tendered in satisfaction of any obligation denominated
in such Alternative Currency at the conversion rate
specified in, or otherwise calculated in accordance
with, the regulations adopted by the Council of the
European Union relating to the Euro. No replacement of
an Alternative Currency by the Euro shall discharge,
excuse or otherwise affect the performance of any
obligation of the Borrower under this Agreement or the
Notes.
Section 2.5. Notices of Conversion/Continuation.
(a) Subject to the provisions of Section 2.12
hereof, the applicable Borrower shall have the option
(i) to convert at any time all or any part of its
outstanding Base Rate Loans in an aggregate minimum
amount of $10,000,000 and integral multiples of
$5,000,000 in excess of that amount, to Eurocurrency
Rate Loans denominated in Dollars and (ii) upon the
expiration of any Interest Period applicable to
outstanding Eurocurrency Rate Loans, to continue all or
any portion of such Eurocurrency Rate Loans in an
aggregate minimum amount of $10,000,000 (or the
Currency Equivalent thereof in any Alternative
Currency) and integral multiples of, in the case of
Loans denominated in Dollars, $5,000,000 in excess of
that amount and, in the case of Loans denominated in an
Alternative Currency, in integral multiples of
5,000,000 units as Eurocurrency Rate Loans. The
succeeding Interest Period(s) of such converted or
continued Eurocurrency Rate Loan shall commence on the
date of conversion in the case of clause (i) above and
on the last day of the Interest Period of the
Eurocurrency Rate Loans to be continued in the case of
clause (ii) above.
The applicable Borrower shall deliver a Notice of
Conversion/ Continuation to the Administrative Agent no
later than 11:00 A.M. (New York City time) at least
three Business Days, in the case of a conversion into
or continuation of Eurocurrency Rate Loans denominated
in Dollars and at least four Business Days, in the case
of a continuation of Eurocurrency Rate Loans
denominated in an Alternative Currency, in advance of
the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business
Day), (ii) the amount of the Syndicated Loan to be
converted/continued, (iii) the nature of the proposed
conversion/continuation and (iv) the requested Interest
Period.
Except as provided in Section 2.12(d) hereof, a
Notice of Conversion/Continuation for conversion to, or
continuation of, a Eurocurrency Rate Loan shall be
irrevocable on or after the related Interest Rate
Determination Date, and the applicable Borrower shall
be bound to convert or continue in accordance
therewith.
(b) Unless the applicable Borrower shall have given
the Administrative Agent (x) a timely Notice of
Conversion/Continuation in accordance with the
provisions of Section 2.05(a) hereof with respect to
Eurocurrency Rate Loans outstanding or (y) written
notice of such Borrower's intent to prepay Eurocurrency
Rate Loans, furnished not later than 11:00 A.M. (New
York City time) on the fourth Business Day prior to the
last day of the Interest Period with respect to such
Eurocurrency Rate Loans, the applicable Borrower shall
be deemed to have requested that such Eurocurrency Rate
Loans be continued for an additional Interest Period of
one month.
Section 2.6. The Revolving Notes and Competitive
Bid Notes.
(a) Each Borrower's obligations to pay the
principal of, and interest on, all the Syndicated Loans
made by each Bank shall be evidenced by a Revolving
Note duly executed and delivered by such Borrower with
blanks appropriately completed in conformity herewith.
The Revolving Note issued to each Bank shall (iA be
payable to the order of such Bank, (ii) be dated the
Effective Date, (iii) be payable in the principal
amount of the denominated currency of the outstanding
Syndicated Loans evidenced thereby, (iv) provide that
all Syndicated Loans then outstanding shall be repaid
on the Final Maturity Date as provided herein, (v) bear
interest as provided in the appropriate clause of
Section 2.08 hereof in respect of the Base Rate Loans,
or the Eurocurrency Rate Loans, as the case may be,
evidenced thereby, (vi) be entitled to the benefits of
this Agreement, and (vii) have attached thereto a
schedule (a "Syndicated Loans and Principal Payments
Schedule") substantially in the form of the Schedule to
Exhibit A-1 hereto. At the time of the making of each
Syndicated Loan or principal payment in respect
thereof, each Bank may, and is hereby authorized to,
make a notation on the Syndicated Loans and Principal
Payments Schedule of the date and the amount of such
Syndicated Loan or payment, as the case may be.
Notwithstanding the foregoing, the failure to make a
notation with respect to the making of any Syndicated
Loan, shall not limit or otherwise affect the
obligation of the Borrower hereunder or under the
applicable Note with respect to such Syndicated Loan
and payments of principal by the Borrower shall not be
affected by the failure to make a notation thereof on
the appropriate Syndicated Loans and Principal Payments
Schedule.
(b) Each Borrower's obligations to pay the
principal of, and interest on, all the Competitive Bid
Loans made by each Bank shall be evidenced by a
Competitive Bid Note duly executed and delivered by
such Borrower with blanks appropriately completed in
conformity herewith. The Competitive Bid Note issued
to each Bank shall (i) be payable to the order of such
Bank, (ii) be dated the Effective Date, (iii) be in a
stated principal amount equal to the Total Commitment
and be payable in the principal amount of the
denominated currency of the outstanding Competitive Bid
Loans evidenced thereby, (iv) provide that all
Competitive Bid Loans then outstanding shall be repaid
on the dates agreed to between such Borrower and such
Bank and, in any event, not later than the Final
Maturity Date, (v) bear interest at the rates and have
interest payable on the dates agreed to between such
Borrower and such Bank, (vi) be entitled to the
benefits of this Agreement, and (vii) have attached
thereto a schedule (a "Competitive Bid Loans and
Principal Payments Schedule") substantially in the form
of the Schedule to Exhibit A-2 hereto. At the time of
the making of each Competitive Bid Loan or principal
payment in respect thereof, each Bank shall, and is
hereby authorized to, make a notation on the
Competitive Bid Loans and Principal Payments Schedule
of the date and the amount of such Competitive Bid Loan
or payment, as the case may be. Notwithstanding the
foregoing, the failure to make a notation with respect
to the making of any Competitive Bid Loan, shall not
limit or otherwise affect the obligation of the
Borrower hereunder or under the applicable Note with
respect to such Competitive Bid Loan and payments of
principal by the Borrower shall not be affected by the
failure to make a notation thereof on the appropriate
Competitive Bid Loans and Principal Payments Schedule.
Section 2.7. Pro Rata Borrowings. The Syndicated
Loans comprising each Borrowing under this Agreement
shall be made by the Banks simultaneously and each
Bank's Syndicated Loan shall be equal to such Bank's
pro rata Share of such Borrowing. It is understood
that no Bank shall be responsible for any default by
any other Bank in its obligation to make a Loan
hereunder and that each Bank shall be obligated to make
the Loans provided to be made by it hereunder subject
to the terms hereof, regardless of the failure of any
other Bank to fulfill its commitment to make Loans
hereunder. If, as a result of an error in the
determination of any Bank's pro rata Share of a
Borrowing with respect to a Syndicated Loan, a Bank
makes a Syndicated Loan in excess of its pro rata Share
(an "Erroneous Loan") the applicable Borrower shall,
upon the request of the Administrative Agent, repay a
portion of such Syndicated Loan equal to such excess
or, within two days of receiving written notice of such
error, correct such error by effecting a Borrowing of
Syndicated Loans having a comparable maturity to the
then remaining maturity of the Erroneous Loan (a
"Correcting Loan") and allocating the Correcting Loan
among the Banks such that, after such allocation, the
sum of the principal amounts of the Erroneous Loan and
the Correcting Loan held by each Bank shall represent
such Bank's pro rata Share of the sum of the aggregate
principal amounts of the Erroneous Loans and the
Correcting Loans held by all Banks; provided, however,
that the Borrower may not incur Correcting Loans if,
after giving effect to such Correcting Loans, the
outstanding Syndicated Loans of any Bank shall exceed
such Bank's Commitment or if the aggregate principal
amount of all Loans outstanding would exceed the Total
Commitment then in effect. Borrowings of Correcting
Loans shall be subject to all of the terms and
conditions of Borrowings hereunder.
Section 2.8. Interest.
(a) Rate of Interest on Loans
(i) Each Borrower agrees to pay interest in
respect of the unpaid principal amount of each
Syndicated Loan made to it from and including the
date made to but not including the date repaid.
(A) Each Eurocurrency Rate Loan shall
bear interest on the unpaid principal amount
thereof for the applicable Interest Period at
an interest rate per annum equal to the sum
of the Applicable Margin plus the applicable
Eurocurrency Rate. The "Applicable Margin"
for any Interest Period means the applicable
percentage amount set forth in the table
below based upon the rating issued by
Standard & Poor's Ratings Services and
Xxxxx'x Investors Service, Inc. for the
Company's long-term unsecured indebtedness at
the Interest Rate Determination Date for such
Interest Period:
Rating Category* Applicable Margin
A/A2 or higher .175%
A-/A3 .180%
BBB+/Baa1 .200%
BBB/Baa2 .250%
BBB-/Baa3 or lower
or no rating .300%
______________
* In the case of "split" ratings (i.e., if the
ratings of each such rating agency differ by one
or more categories, including numerical modifiers
and (+) and (-) as categories) where the ratings
differential is one category, the Applicable
Margin will be based upon the higher of the two
ratings.
In the case of "split" ratings where the rating
differential is more than one category, the
Applicable Margin will be based upon the rating
that is one category above the lowest rating.
(B) Each Base Rate Loan shall bear
interest on the unpaid principal thereof at
an interest rate per annum equal to the
applicable Base Rate.
(ii) Each Borrower agrees to pay interest in
respect of the unpaid principal amount of each
Competitive Bid Loan made to it from and including
the date made to but not including the date
repaid.
(A) Each Competitive Bid LIBOR
Loan shall bear interest on the
outstanding principal amount thereof,
for the Interest Period applicable
thereto, at a rate per annum equal to
the sum of the Eurocurrency Rate for
such Interest Period plus (or minus) the
Bid Margin quoted by the Bank making
such Loan in accordance with Section
2.02(b).
(B) Each Competitive Bid Absolute
Rate Loan shall bear interest on the
outstanding principal amount thereof,
for the Interest Period applicable
thereto, at a rate per annum equal to
the Absolute Rate quoted by the Bank
making such Loan in accordance with
Section 2.02(b).
The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder in accordance
with Section 2.12(a). The Administrative Agent shall
give prompt notice to the applicable Borrower and Banks
of each rate of interest so determined, and its
determination thereof shall be conclusive in the
absence of manifest error.
(b) Interest Periods
In connection with each Eurocurrency Rate
Loan and Competitive Bid Loan, the applicable Borrower
shall elect an interest period (each an "Interest
Period") to be applicable to such Eurocurrency Rate
Loan or Competitive Bid Loan, as the case may be. The
Interest Period (i) with respect to each Eurocurrency
Rate Loan shall be either a one, two, three or six
month period or, if permitted under clause (E) of this
Section 2.08(b), a nine or twelve month period, (iiA
with respect to each Competitive Bid LIBOR Loan shall
be a whole number of months as specified by the
Borrower in the Notice of Competitive Bid Borrowing and
(iii) with respect to each Competitive Bid Absolute
Rate Loan shall be such number of days (but not less
than seven days) as specified by the Borrower in the
Notice of Competitive Bid Borrowing; provided that:
(A) the Interest Period for each Eurocurrency
Rate Loan and Competitive Bid Loan shall commence
on the date of such Loan;
(B) if an Interest Period would otherwise
expire on a day which is not a Business Day, such
Interest Period shall expire on the next
succeeding Business Day; provided that if any
Interest Period would otherwise expire on a day
which is not a Business Day but is a day of the
month after which no further Business Day occurs
in such month, such Interest Period shall expire
on the next preceding Business Day;
(C) any Interest Period which 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 such ending calendar month;
(D) no Interest Period shall extend beyond the
Final Maturity Date;
(E) no Eurocurrency
Rate Loan shall have an
Interest Period of nine or
twelve months unless the
Administrative Agent, after
consultation with the Banks,
has determined in good faith
based on prevailing conditions
in the Eurocurrency market on
any date of determination that
U.S. Dollar deposits are
generally offered by the Banks
to first class banks in the
Eurocurrency market for a
comparable maturity; and
(F) there shall be no more than 30 Interest
Periods outstanding at any time.
(c) Interest Payments. Interest shall be payable
on each (i) Syndicated Loan in arrears on each
Interest Payment Date applicable to that Loan, and (ii)
Competitive Bid Loan, at such times as agreed to by the
applicable Borrower and the Bank making such
Competitive Bid Loan (which shall be the scheduled
maturity date of such Loan if less than 180 days after
the making of such Loan), and in each case upon any
prepayment of that Loan (to the extent accrued on the
amount being prepaid) and when due and payable (whether
at maturity, by acceleration or otherwise).
(d) Computation of Interest. Interest on
Eurocurrency Rate Loans (other than Eurocurrency Rate
Loans denominated in British Pounds Sterling) shall be
computed on the basis of a 360-day year and the actual
number of days elapsed in the period during which it
accrues and interest on Base Rate Loans and
Eurocurrency Rate Loans denominated in British Pounds
Sterling shall be computed on the basis of a 365-day
year and the actual number of days elapsed in the
period during which it accrues. Interest on a
Competitive Bid Loan shall be computed on the basis set
forth in the applicable Notice of Competitive Bid
Borrowing. In computing interest on any Loan, the date
of the making of the Loan or, in the case of a
Eurocurrency Rate Loan, the first day of an Interest
Period, as the case may be, shall be included and the
date of payment or the expiration of an Interest
Period, as the case may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan.
(e) Post-Maturity Interest. Any principal payments
on the Loans not paid when due and, to the extent
permitted by applicable law, any interest payment on
the Loans not paid when due, in each case whether at
stated maturity, by notice of prepayment, by
acceleration or otherwise, shall thereafter bear
interest payable upon demand at a rate per annum equal
to the sum of 1% plus the higher of (i) the rate of
interest applicable to such Loans or (ii) the rate of
interest otherwise payable under this Agreement for
Base Rate Loans.
Section 2.9. Commissions and Fees.
(a) Facility Fees.
(i) The Company shall pay to the
Administrative Agent for the account of the Banks
a facility fee accrued from and including the
Effective Date to and including the Final Maturity
Date on the daily average aggregate amount of the
Commitments (whether used or unused) at a rate per
annum determined for each fiscal quarter of the
Company based upon the rating issued by Standard &
Poor's Ratings Services and Xxxxx'x Investors
Service, Inc. for the Company's long-term
unsecured indebtedness at the beginning of each
such fiscal quarter in accordance with the
following table:
Rating Facility
Category* Fee Rate
A/A2 or higher .075%
A-/A3 .09%
BBB+/Baa1 .10%
BBB/Baa2 .125%
BBB-/Baa3 or .150%
lower or no
rating
______________
* In the case of "split" ratings (i.e., if the
ratings of each such rating agency differ by one
or more categories, including numerical modifiers
and (+) and (-) as categories) where the ratings
differential is one category, the Applicable
Margin will be based upon the higher of the two
ratings.
In the case of "split" ratings where the rating
differential is more than one category, the
Applicable Margin will be based upon the rating
that is one category above the lowest rating.
(ii) Such facility fees shall be computed on
the basis of a year of 360 days and paid for the
actual number of days elapsed. Such facility fees
shall be paid quarterly in arrears on each March
31, June 30, September 30 and December 31 and on
the Final Maturity Date. From the effective date
of any termination or reduction of Commitments,
such facility fees shall cease to accrue or be
correspondingly reduced. If the Commitments are
terminated in their entirety or reduced, facility
fees accrued on the total Commitments, or accrued
on the aggregate amount of the reduction of the
Commitments (in the case of such a reduction),
shall be payable on the effective date of such
termination or reduction.
(iii) Upon receipt of any amount representing
fees paid pursuant to this Section 2.09, the
Administrative Agent shall pay such amount to the
Banks based upon their respective pro rata Shares.
(b) Administrative Fees. The Company agrees to pay
to the Administrative Agent an annual fee (the
"Administrative Fee") in an amount equal to the amount
previously agreed to in writing by the Company and the
Administrative Agent. Such Administrative Fee shall be
payable quarterly in advance commencing on the first
quarterly anniversary of the date of this Agreement and
on each successive quarterly anniversary of such date,
so long as any Loan or Commitment is outstanding on
such date.
(c) Time of Payment. The Company shall make
payment of each Bank's facility fee and of the
Administrative Agent's Administrative Fee hereunder,
not later than Noon (New York City time) on the date
when due in Dollars and in immediately available funds,
to the Administrative Agent at its New York Office.
Section 2.10. Reductions in Commitments;
Repayments and Payments.
(a) Reductions of Total Commitment. After the
Effective Date, the Company shall have the right, upon
at least three Business Days' prior irrevocable written
notice to the Administrative Agent, who will promptly
notify the Banks thereof, by telephone confirmed in
writing, without premium or penalty, to reduce or
terminate the Total Commitment, in whole at any time or
in part from time to time, in minimum aggregate amounts
of $10,000,000 (unless the Total Commitment at such
time is less than $10,000,000, in which case, in an
amount equal to the Total Commitment at such time) and,
if such reduction is greater than $10,000,000, in
integral multiples of $5,000,000 in excess of such
amount, provided that (a) any such reduction of the
Total Commitment shall apply to the Commitment of each
Bank in accordance with its pro rata Share of the
aggregate of such reduction, (b) any such reduction in
the Total Commitment shall be permanent and (c) after
giving effect to any such reduction, the Total
Commitment shall equal or exceed an amount equal to the
sum of the aggregate outstanding principal amount of
Loans denominated in Dollars and the Currency
Equivalent in Dollars of all outstanding Loans
denominated in Alternative Currencies.
(b) Voluntary Prepayments.
(i) Subject, in the case of any Eurocurrency
Rate Loan, to Section 2.12(e), the applicable
Borrower shall have the right to prepay any
Syndicated Loan in whole at any time or in part
from time to time without premium or penalty in an
aggregate minimum amount of $10,000,000 (or the
Currency Equivalent thereof) and integral
multiples of $1,000,000 (or in the case of Loans
denominated in an Alternative Currency, in
integral multiples of 1,000,000 units) in excess
of that amount or, if less, the outstanding
principal amount of such Loan. The applicable
Borrower shall give notice (by telex or
telecopier, or by telephone (confirmed in writing
promptly thereafter)) (which shall be irrevocable)
to the Administrative Agent and each Bank of each
proposed prepayment hereunder, (x) with respect to
Base Rate Loans, not later than 10:30 A.M. on the
Business Day preceding the day of the proposed
repayment and (y) with respect to Eurocurrency
Rate Loans, at least four Business Days prior to
the day of the proposed prepayment, and in each
case shall specify the proposed prepayment date
(which shall be a Business Day), the aggregate
principal amount of the proposed prepayment and
what Loans are to be prepaid.
(ii) No Borrower may prepay all or any portion
of the principal amount of any Competitive Bid
Loan prior to the maturity thereof.
(c) Mandatory Repayments.
(i) The Administrative Agent shall calculate
the aggregate outstanding principal amount of
Loans outstanding on (A) the date four Business
Days in advance of any proposed Borrowing
consisting of Eurocurrency Rate Loans or
Competitive Bid LIBOR Loans, (B) the date one
Business Day in advance of a proposed Borrowing
consisting of Base Rate Loans or Competitive Bid
Absolute Rate Loans, (C) the date of any
Redenomination, (D) the last day of any Interest
Period and (E) the last Business Day of any March,
June, September or December, by adding (x) the
principal amount of Loans denominated in Dollars
and (y) the Currency Equivalent in Dollars of the
principal amount of Loans denominated in each
Alternative Currency. If the aggregate
outstanding principal amount of Loans on any such
date exceeds the amount equal to the product of
105% and the Total Commitment, the Borrowers
jointly and severally shall immediately following
notice from the Administrative Agent thereof
prepay to the Administrative Agent the amount
equal to the difference between the amount of the
Loans (as calculated above) and the Total
Commitment.
(ii) Each Borrower shall repay to the relevant
Bank (which shall promptly furnish notice thereof
to the Administrative Agent) the unpaid principal
amount of each Competitive Bid Loan made by such
Bank hereunder on the maturity date with respect
thereto and shall repay to the Administrative
Agent the unpaid principal amount of each
Syndicated Loan on the Final Maturity Date, in
each case, together with all accrued and unpaid
interest thereon. Upon obtaining knowledge of an
Event of Default, a Potential Event of Default, or
any other default with respect to a Competitive
Bid Loan, the Bank which made such Competitive Bid
Loan shall notify the Administrative Agent
thereof.
(d) Interest on Principal Amounts
Prepaid. All prepayments under this Section 2.10 shall
be made together with accrued and unpaid interest to
the date of such prepayment on the principal amount
prepaid and any other amounts payable pursuant to
Section 2.12(e) of this Agreement.
(e) Method and Place of Payment. Except as
otherwise specifically provided herein, all payments to
be made by the applicable Borrower on account of
principal and interest on each Loan shall be made
without setoff or counterclaim by causing funds in an
amount equal to each such payment to be credited to
the Account of the Administrative Agent, in the case of
a Syndicated Loan for the ratable account of each Bank,
and to the Account of the relevant Bank, in the case of
a Competitive Bid Loan, in each case not later than
12:00 Noon (local time in the city in which the
relevant Account is located) on the date when due and
shall be made in the currency in which such Loan is
denominated in same day funds (or, in the case of any
Alternative Currency, in such funds as may then be
customary for the settlement of international
transactions in such Alternative Currency). Whenever
any payment with respect to any Loan shall be due on a
day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest
shall be payable at the applicable rate during such
extension; provided, however, that with respect to
Eurocurrency Rate Loans and Competitive Bid LIBOR
Loans, if the next succeeding Business Day falls in
another calendar month, such payments shall be made on
the next preceding Business Day. The Administrative
Agent shall remit to each Bank its pro rata Share of
all such payments received in collected funds by the
Administrative Agent for the account of such Bank in
respect of which such payment is made. Such payments
shall be made to the Account of each Bank. Upon
receipt of any principal payment with respect to a
Competitive Bid Loan, the receiving Bank shall promptly
(and in any event within one Business Day thereof)
notify the Administrative Agent with respect thereto.
(f) Net Payments.
(i) All payments by the applicable Borrower or
the Company under this Agreement and/or the Notes
shall be made without setoff or counterclaim and
(unless, in the case of Competitive Bid Loans
only, otherwise agreed to between the Borrower and
the Bank making any such Competitive Bid Loan), in
such amounts as may be necessary in order that all
such payments (after deduction or withholding for
or on account of any present or future taxes,
levies, imposts, duties or other charges of
whatsoever nature imposed by any Governmental
Authority, other than any tax on or measured by
the net income of a Bank pursuant to the income
tax laws of the United States or of the
jurisdictions where such Bank's principal or
Applicable Lending Office is located
(collectively, "Taxes")) shall not be less than
the amounts otherwise specified to be paid under
this Agreement and/or the Notes. If the
applicable Borrower or the Company is required by
law to make any deduction or withholding from any
payment due hereunder, then the amount payable
will be increased to such amount which, after
deduction from such increased amount of all
amounts required to be deducted or withheld
therefrom, will not be less than the amount
otherwise due and payable. Without prejudice to
the foregoing, if any Bank or the Administrative
Agent is required to make any payment on account
of Taxes, the Company will, upon notification by
the Bank or the Administrative Agent promptly
indemnify such person against such Taxes, together
with any interest, penalties and expenses payable
or incurred in connection therewith. The Company
shall also reimburse each Bank, upon the written
request of such Bank, for taxes imposed on or
measured by the net income of such Bank pursuant
to the laws of the United States of America, any
State or political subdivision thereof, or the
jurisdiction in which the principal office or
lending office of such Bank is located or under
the laws of any political subdivision or taxing
authority of any such jurisdiction as such Bank
shall determine are payable by such Bank in
respect of Taxes paid to or on behalf of such Bank
pursuant to Section 2. For purposes of this
Section, the term "Taxes" includes interest,
penalties and expenses payable or incurred in
connection therewith. A certificate as to any
additional amounts payable to a Bank under this
Section 2.10(f) submitted to the Company by such
Bank shall, absent manifest error, be final,
conclusive and binding for all purposes upon all
parties hereto. With respect to each deduction or
withholding for or on account of any Taxes, the
Company shall promptly furnish to each Bank such
certificates, receipts and other documents as may
be required (in the judgment of such Bank) to
establish any tax credit to which such Bank may be
entitled.
(ii) Each Bank shall supply to the Company,
within a reasonable period after the date of
execution of this Agreement, executed copies of
Internal Revenue Service Form 4224 or Form 1001
(which indicates that the respective Bank is
entitled to receive interest exempt from United
States withholding tax) or any successor Forms,
and shall update such Forms as necessary in order
to retain their effectiveness, to the extent each
such Bank is legally entitled to execute and
deliver either of such Forms.
(iii) With respect to any Taxes which are paid
by any Borrower in accordance with the provisions
of this Section 2.10(f), each Bank receiving the
benefits of such payments of Taxes hereby agrees
to pay to such Borrower any amounts refunded to
such Bank which such Bank determines in its sole
discretion to be a refund in respect of such
Taxes.
(g) Order of Payment. Subject to the last sentence
of this Section 2.10(g), all payments made by the
applicable Borrower to the Administrative Agent (other
than payments to the Administrative Agent in its
capacity as a Bank which has made Competitive Bid Loans
to such Borrower and or in connection with any fee or
indemnification payments not specifically designated
under the terms of this Agreement as being for the
benefit of the Banks) shall be applied by the
Administrative Agent, on behalf of each Bank based on
its pro rata Share, (i) first, to the payment of
expenses referred to in Section 10.02 hereof, (ii)
second, to the payment of the fees referred to in
Section 2.09 hereof, (iii) third, to the payment of
accrued and unpaid interest on such Bank's Base Rate
Loans until all such accrued interest has been paid,
(iv) fourth, to the payment of accrued and unpaid
interest on such Bank's Eurocurrency Rate Loans until
all such accrued interest has been paid, (v) fifth, to
the payment of the unpaid principal amount of such
Bank's Base Rate Loans, and (vi) sixth, to the payment
of the unpaid principal amount of such Bank's
Eurocurrency Rate Loans. Notwithstanding the
foregoing, upon the occurrence and during the
continuance of a Potential Event of Default or an Event
of Default, all payments made by the applicable
Borrower with respect to Loans shall be made to the
Administrative Agent and after being applied in
accordance with clauses (i) and (ii) of this Section
2.10(g), shall be paid to the Banks pro rata based upon
the aggregate principal amount of Loans outstanding
made by each Bank, and the payments allocable to
Syndicated Loans shall then be applied in accordance
with clauses (iii), (iv) and (v) of this Section
2.10(g).
Section 2.11. Use of Proceeds. The proceeds of
the Loans made by the Banks to the Borrowers may be
used for acquisitions, repurchases of capital stock of
the Company, the funding of dividends payable to
shareholders of the Company and for general corporate
purposes of the Borrowers.
Section 2.12. Special Provisions Governing
Eurocurrency Rate Loans and/or Competitive Bid Loans.
Notwithstanding any other provisions of this Agreement,
the following provisions shall govern with respect to
Eurocurrency Rate Loans and Competitive Bid Loans as to
the matters covered, unless, in the case of Competitive
Bid Loans, otherwise agreed to between the Borrower and
the Bank making any such Competitive Bid Loan:
(a) Determination of Interest Rate. As soon as
practicable after 10:00 A.M. (New York City time) on an
Interest Rate Determination Date, the Administrative
Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding
upon all parties) the interest rate which shall apply
to the Eurocurrency Rate Loans and the Competitive Bid
LIBOR Loans for which an interest rate is then being
determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by
telephone confirmed in writing) to the Borrower
requesting such Eurocurrency Loan or Competitive Bid
LIBOR Loan and to each Bank.
(b) Substituted Rate of Borrowing. In the event
that on any Interest Rate Determination Date any Bank
(including the Administrative Agent) shall have
determined (which determination shall be final and
conclusive and binding upon all parties but, with
respect to the following clauses (i) and (ii)(b), shall
be made only after consultation with the Company and
the Administrative Agent) that:
(i) by reason of any changes arising after the
date of this Agreement affecting the Eurocurrency
market or affecting the position of that Bank in
such market, adequate and fair means do not exist
for ascertaining the applicable interest rate by
reference to the Eurocurrency Rate with respect to
the Eurocurrency Rate Loans or Competitive Bid
LIBOR Loans as to which an interest rate
determination is then being made; or
(ii) by reason of (a) any change (including any
changes proposed or published prior to the date
hereof) after the date hereof in any applicable
law or any governmental rule, regulation or order
(or any interpretation or administration thereof
and including the introduction of any new law or
governmental rule, regulation or order (including
any thereof proposed or published, prior to the
date hereof)) or (b) other circumstances affecting
that Bank or the Eurocurrency market or the
position of that Bank in such market (such as, for
example, but not limited to, official reserve
requirements required by Regulation D to the
extent not compensated pursuant to Section 2.14),
the Eurocurrency Rate shall not represent the
effective pricing to that Bank for deposits in the
applicable currency of comparable amounts for the
relevant period;
then, and in any such event, that Bank shall be an Affected Bank
and it shall promptly (and in any event as soon as
possible after being notified of a Borrowing) give
notice (by telephone confirmed in writing) to the
applicable Borrower and the Administrative Agent (which
notice the Administrative Agent shall promptly transmit
to each other Bank) of such determination. Thereafter,
such Borrower shall pay to the Affected Bank with
respect to such Eurocurrency Rate Loans or Competitive
Bid LIBOR Loans, upon written demand therefor, but only
if such demand is made within 30 days of the end of the
Interest Period for such Interest Rate Determination
Date, such additional amounts (in the form of an
increased rate of, or a different method of
calculating, interest or otherwise as the Affected Bank
in its sole discretion shall reasonably determine) as
shall be required to cause the Affected Bank to receive
interest with respect to such Affected Bank's
Eurocurrency Rate Loans or Competitive Bid LIBOR Loans
for the Interest Period following that Interest Rate
Determination Date (such Interest Period being an
"Affected Interest Period") at a rate per annum equal
to the Applicable Margin or Bid Margin in excess of
the effective pricing to the Affected Bank for deposits
in the applicable currency to make or maintain
Eurocurrency Rate Loans or Competitive Bid LIBOR Loans,
as the case may be. A certificate as to additional
amounts owed the Affected Bank, showing in reasonable
detail the basis for the calculation thereof, submitted
in good faith to the applicable Borrower and the
Administrative Agent by the Affected Bank shall, absent
manifest error, be final, conclusive and binding for
all purposes.
(c) Required Termination and Prepayment. In the
event that on any date any Bank shall have reasonably
determined (which determination shall be final and
conclusive and binding upon all parties) that the
making or continuation of its Eurocurrency Rate Loans
in any currency (i) has become unlawful by, or would be
inconsistent with, compliance by that Bank in good
faith with any law, governmental rule, regulation or
order (whether or not having the force of law and
whether or not failure to comply therewith would be
unlawful), or (ii) has become impracticable as a result
of a contingency occurring after the date of this
Agreement which materially and adversely affects the
Eurocurrency market for such currency, then, and in any
such event, that Bank shall be an Affected Bank and it
shall promptly give notice (by telephone confirmed in
writing) to the applicable Borrower and the
Administrative Agent (which notice the Administrative
Agent shall promptly transmit to each Bank) of that
determination. Subject to the prior withdrawal of a
Notice of Syndicated Borrowing or prepayment of the
Eurocurrency Rate Loans of the Affected Bank as
contemplated by the following Section 2.12(d) hereof,
the obligation of the Affected Bank to make
Eurocurrency Rate Loans denominated in the affected
currency during any such period shall be terminated at
the earlier of the termination of the Interest Period
then in effect or when required by law and the
applicable Borrower shall no later than the termination
of the Interest Period in effect at the time any such
determination pursuant to this Section 2.12(c) is made
or earlier, when required by law, repay Eurocurrency
Rate Loans of the Affected Bank denominated in the
affected currency together with all interest accrued
thereon.
(d) Options of the Borrowers. In lieu of paying an
Affected Bank such additional moneys as are required by
Section 2.12(b), 2.12(i), 2.13 or 2.14 hereof or the
prepayment of an Affected Bank required by Section
2.12(c), hereof but in no event in derogation of
Section 2.12(e) hereof, any Borrower may exercise any
one of the following options:
(i) If the determination by an Affected Bank
relates only to Eurocurrency Rate Loans then being
requested by such Borrower pursuant to a Notice of
Syndicated Borrowing or a Notice of Conver
sion/Continuation, the Borrower may by giving
notice (by telephone confirmed in writing) to the
Administrative Agent (who shall promptly give
similar notice to each Bank) no later than the
date immediately prior to the date on which such
Eurocurrency Rate Loans are to be made, continued
or converted withdraw as to the Affected Bank that
Notice of Syndicated Borrowing or Notice of
Conversion/Continuation, as the case may be; or
(ii) If the determination
by an Affected Bank relates only to Competitive Bid LIBOR Loans
then being requested by such Borrower pursuant to a Notice of
Competitive Bid Borrowing, the Borrower may by giving notice (by
telephone confirmed in writing) to the Administrative Agent (who shall
promptly give similar notice to each Bank) no later than the date
immediately prior to the date on which such Competitive Bid LIBOR
Loans are to be made, withdraw as to the Affected Bank that Notice of
Competitive Bid Borrowing;
(iii) If the determination
by an Affected Bank relates only to Loans made in an Alternative
Currency, the Borrower may if permitted by law Redenominate such Loans
(subject to the prepayment provisions of Section 2.10(c) of this
Agreement) in accordance with Section 2.12(m) of this Agreement into
Dollars or such other Alternative Currency as to which such
circumstances do not exist;
(iv) If the determination by an Affected Bank
relates only to Loans made in Dollars, upon
written notice to the Administrative Agent and
each Bank, such Borrower may terminate the
obligations of the Banks to make Loans as, and to
convert Loans into, Eurocurrency Rate Loans
denominated in Dollars and in such event, the
Borrower shall, prior to the time any payment
pursuant to Section 2.12(c) hereof is required to
be made or, if the provisions of Section 2.12(d)
hereof are applicable, at the end of the then
current Interest Period, convert all of such
Eurocurrency Rate Loans into Base Rate Loans; or
(v) Such Borrower may give notice (by
telephone confirmed in writing) to the Affected
Bank and the Administrative Agent (who shall
promptly give similar notice to each Bank) and
require the Affected Bank to make the Eurocurrency
Rate Loan or Competitive Bid LIBOR Loan then being
requested (if denominated in Dollars) as a Base
Rate Loan or to continue to maintain its
outstanding Base Rate Loan then the subject of a
Notice of Conversion/Continuation as a Base Rate
Loan or to convert its Eurocurrency Rate Loan then
outstanding that is so affected (if denominated in
Dollars) into a Base Rate Loan at the end of the
then current Interest Period (or at such earlier
time as prepayment is otherwise required to be
made pursuant to Section 2.12(c) hereof), that
notice to pertain only to the Loans of the
Affected Bank and to have no effect on the
obligations of the other Banks to make or maintain
Eurocurrency Rate Loans or to convert Base Rate
Loans into Eurocurrency Rate Loans.
(e) Compensation. The Company shall compensate
each Bank, upon written request by that Bank (which
request shall set forth in reasonable detail the basis
for requesting such amounts), for all reasonable
losses, expenses and liabilities (including, without
limitation, any interest paid by that Bank to lenders
of funds borrowed by it to make or carry its
Eurocurrency Rate Loans and Competitive Bid Loans and
any loss (other than loss of margins) sustained by that
Bank in connection with the re-employment of such
funds), which that Bank may sustain with respect to any
Borrower's Eurocurrency Rate Loans or Competitive Bid
Loans if for any reason (other than a default or error
by that Bank) (i) a borrowing of any Eurocurrency Rate
Loan or Competitive Bid Loan does not occur on a date
specified therefor in a Notice of Borrowing or Notice
of Conversion/Continuation or a telephonic request for
borrowing, (ii) any repayment or conversion of any of
such Bank's Eurocurrency Rate Loans or Competitive Bid
Loans occurs on a date which is not the last day of the
Interest Period applicable to that Eurocurrency Rate
Loan or Competitive Bid Loan (if applicable), (iii) any
repayment of any such Bank's Eurocurrency Rate Loans or
Competitive Bid Loans is not made on any date specified
in a notice of repayment given by the Borrower, or (iv)
as a consequence of any other failure by the Borrower
to repay such Bank's Eurocurrency Rate Loans or
Competitive Bid Loans when required by the terms of
this Agreement.
(f) Quotation of Eurocurrency Rate. Anything
herein to the contrary notwithstanding, if on any
Interest Rate Determination Date no Eurocurrency Rate
is available by reason of the failure or inability of
all Reference Banks to provide offered quotations to
the Administrative Agent in accordance with the
definition of "Eurocurrency Rate", the Administrative
Agent shall give the applicable Borrowers and each Bank
prompt notice thereof and the Syndicated Loans
requested shall be made as Base Rate Loans.
(g) Affected Bank's Obligation to Mitigate. Each
Bank agrees that, as promptly as practicable after it
becomes aware of the occurrence of an event or the
existence of a condition that would cause it to be an
Affected Bank under Section 2.12(b) or 2.12(c) hereof,
it will, to the extent not inconsistent with such
Bank's internal policies, use reasonable efforts to
make, fund or maintain the affected Loans of such Bank
through another Applicable Lending Office if as a
result thereof the additional moneys which would
otherwise be required to be paid in respect of such
Loans pursuant to Section 2.12(b) hereof would be
materially reduced or the illegality or other adverse
circumstances which would otherwise require prepayment
of such Loans pursuant to Section 2.12(c) hereof would
cease to exist and if, as determined by such Bank, in
its sole discretion, the making, funding or maintaining
of such Loans through such other Applicable Lending
Office would not otherwise materially adversely affect
such Loans or such Bank. The Company hereby agrees to
pay all reasonable expenses incurred by any Bank in
utilizing another Applicable Lending Office pursuant to
this Section 2.12(g).
(h) Booking of Loans. Each Loan shall be booked by
the Bank making such Loan at, to, or for the account
of, its Applicable Lending Office for such Loan.
(i) Increased Costs. Except as provided in Section
2.12(b), if, by reason of (x) after the date hereof,
the introduction of or any change (including, without
limitation, any change by way of imposition or increase
of reserve requirements) in or in the interpretation of
any law or regulation (whether or not proposed or
published prior to the date hereof), or (y) the
compliance with any guideline or request from any
central bank or other Governmental Authority or
quasi-governmental authority exercising control over
banks or financial institutions generally (whether or
not having the force of law):
(i) any Bank (or its Applicable Lending
Office) shall be subject to any tax, duty or other
charge with respect to its Eurocurrency Rate Loans
or Competitive Bid Loans or its obligation to make
Eurocurrency Rate Loans or Competitive Bid Loans,
or shall change the basis of taxation of payments
to any Bank of the principal of or interest on its
Eurocurrency Rate Loans or Competitive Bid Loans
or its obligation to make Eurocurrency Rate Loans
or Competitive Bid Loans (except for changes in
the rate of tax on the overall net income of such
Bank or its Applicable Lending Office imposed by
the jurisdiction in which such Bank's principal
executive office or Applicable Lending Office is
located); or
(ii) any reserve (including, without limita
tion, any imposed by the Board), special deposit
or similar requirement against assets of, deposits
with or for the account of, or credit extended by,
any Bank's Applicable Lending Office shall be
imposed or deemed applicable or any other
condition affecting its Eurocurrency Rate Loans or
Competitive Bid Loans or its obligation to make
Eurocurrency Rate Loans or Competitive Bid Loans
shall be imposed on any Bank or its Applicable
Lending Office or the interbank Eurocurrency
market;
and as a result thereof there shall be any increase in the cost to
that Bank of agreeing to make or making, funding or
maintaining Eurocurrency Rate Loans or Competitive Bid
Loans (except to the extent such Bank is entitled to
compensation therefor during the relevant Interest
Period pursuant to Section 2.14), or there shall be a
reduction in the amount received or receivable by that
Bank or its Applicable Lending Office, then the
Borrower shall from time to time, upon written notice
from and demand by that Bank (which shall be promptly
furnished upon the Banks being made subject thereto)
(with a copy of such notice and demand to the
Administrative Agent), pay to the Administrative Agent
for the account of that Bank, within five Business Days
after the date specified in such notice and demand,
additional amounts sufficient to indemnify that Bank
against such increased cost. A certificate as to the
basis for and calculation of the amount of such
increased cost, submitted to the Borrower and the
Administrative Agent by that Bank, shall, absent
manifest error, be final, conclusive and binding for
all purposes.
(j) Assumption Concerning Funding of Eurocurrency
Rate Loans. Calculation of all amounts payable to a
Bank under this Section 2.12 in respect of a
Eurocurrency Rate Loan shall be made as though that
Bank had actually funded its Eurocurrency Rate Loan
through the purchase of a Eurocurrency deposit, bearing
interest at the Eurocurrency Rate applicable to such
Eurocurrency Rate Loan in an amount equal to the amount
of the Eurocurrency Rate Loan and having a maturity
comparable to the relevant Interest Period and through
the transfer of such Eurocurrency deposit, from an
offshore office of that Bank to a domestic office of
that Bank in the United States of America; provided,
however, that each Bank may fund each of its
Eurocurrency Rate Loans in any manner it sees fit and
the foregoing assumption shall be utilized only for the
calculations of amounts payable under this Section
2.12.
(k) Eurocurrency Rate Loans and Competitive Bid
Loans After Default. Unless the Required Banks shall
otherwise agree, after the occurrence of and during the
continuance of a Potential Event of Default or an Event
of Default, the Borrowers may not elect to have a
Eurocurrency Rate Loan or Competitive Bid Loan be made
or have any Eurocurrency Rate Loan continued or have
any Base Rate Loan converted into a Eurocurrency Rate
Loan.
(l) Eurocurrency Rate Taxes. The Company agrees
that:
(i) Promptly upon notice from any Bank to the
Company, the Company will pay, prior to the date
on which penalties attach thereto, all present and
future income, stamp and other taxes, levies, or
costs and charges whatsoever imposed, assessed,
levied or collected on or in respect of any
Borrower's Eurocurrency Rate Loans or Competitive
Bid LIBOR Loans solely as a result of the interest
rate being determined by reference to the
Eurocurrency Rate, as the case may be, and/or the
provisions of this Agreement relating to the
Eurocurrency Rate and/or the recording,
registration, notarization or other formalization
of any thereof (all such taxes, levies, costs and
charges being herein collectively called
"Eurocurrency Rate Taxes"); provided that
Eurocurrency Rate Taxes shall not include taxes
imposed on or measured by the overall net income
of that Bank by the country under the laws of
which such Bank is organized or any political
subdivision or taxing authority thereof or
therein, or taxes imposed on or measured by the
overall income of any branch or subsidiary of that
Bank (whether gross or net income) by any
jurisdiction or subdivision thereof in which that
branch or subsidiary is doing business. The
Company shall also pay such additional amounts
equal to increases in taxes payable by that Bank
which increases are attributable to payments made
by the Company described in the immediately
preceding sentence or this sentence. Promptly
after the date on which payment of any such
Eurocurrency Rate Tax is due pursuant to
applicable law, the Company will, at the request
of that Bank, furnish to that Bank evidence, in
form and substance satisfactory to that Bank, that
the Company has met its obligation under this
Section 2.12(l); and
(ii) The Company will indemnify each Bank
against, and reimburse each Bank on demand for,
any Eurocurrency Rate Taxes payable under clause
(i) above, as the case may be, as determined by
that Bank in its good faith discretion. That Bank
shall provide the Company with appropriate
receipts for any payments or reimbursements made
by the Borrower pursuant to this clause (ii).
(m) Redenomination. In the case of Section
2.12(d)(iii) of this Agreement, the affected Borrower
may upon notice to the Administrative Agent and the
Banks given on the same day as the notification
provided for therein request that all Loans in an
Alternative Currency be Redenominated into Dollars or
some other specified Alternative Currency. Such
Redenomination shall be equal to the Currency
Equivalent in Dollars or the other Alternative Currency
of such Loan. Each such notice of request of a
Redenomination shall specify (i) the Loans to be
Redenominated, (ii) the currency into which such Loans
are to be Redenominated and (iii) the duration of the
Interest Period for such Loans upon being so
Redenominated. In addition, the affected Borrower
hereby agrees to indemnify each Bank against all
losses, including loss of profit and expenses,
including, but not limited to, losses contemplated by
Section 2.12(e) of this Agreement and losses related to
foreign exchange risks suffered as a result of such
Redenomination. A certificate of the applicable Bank
as to the amount required to be paid by the affected
Borrower under this Section 2.12(m) shall accompany a
demand for such payment and shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.13. Capital Requirements. If while any
portion of the Total Commitment is in effect or any
Loans are outstanding, any Bank determines that the
adoption of any law, treaty, rule, regulation,
guideline or order regarding capital adequacy or
capital maintenance or any change therein, or any
change in the interpretation or administration thereof
by any Governmental Authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank,
with any request or directive regarding capital
adequacy or capital maintenance (whether or not having
the force of law and whether or not the failure to
comply therewith would be unlawful) of any such
Governmental Authority, central bank or comparable
agency, has or would have the effect of increasing the
amount of capital required to be maintained by such
Bank (including, without limitation, with respect to
any Bank's Commitment or Competitive Bid Loans
outstanding), then the Company shall from time to time,
within 15 days of written notice and demand from such
Bank (with a copy to the Administrative Agent), pay to
the Administrative Agent, for the account of such Bank,
additional amounts sufficient to compensate such Bank
for the cost of such additional required capital. A
certificate showing in reasonable detail the
computations made in arriving at such cost, submitted
to the Company and the Administrative Agent by such
Bank shall, absent manifest error, be final, conclusive
and binding for all purposes.
Section 2.14. Regulation D Compensation. If and
so long as a reserve requirement of the type described
in the definition of "Eurocurrency Reserve Percentage"
is prescribed by the Board of Governors of the Federal
Reserve System (or any successor), each Bank subject to
such requirement may require the Borrower to pay,
contemporaneously with each payment of interest on each
of such Bank's Eurocurrency Loans additional interest
on such Eurocurrency Loan at a rate per annum
determined by such Bank up to but not exceeding the
excess of (i) (A) the applicable Eurocurrency Rate
divided by (B) one minus the Eurocurrency Reserve
Percentage over (ii) the applicable Eurocurrency Rate.
Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional
interest on the Eurocurrency Loans of such Bank shall
be payable to such Bank at the place indicated in such
notice with respect to each Interest Period commencing
at least three Business Days after such Bank gives such
notice and (y) shall notify the Borrower at least five
Business Days before each date on which interest is
payable on the Eurocurrency Loans of the amount then
due it under this Section.
ARTICLE 3
Conditions to Loans
Section 3.1. Conditions to Initial Loans. The
obligation of each Bank to make the Initial Loans is,
in addition to the conditions precedent specified in
Section 3.02, subject to satisfaction of each of the
following conditions:
(a) On or before the Effective Date, the Company
shall have delivered to the Banks (or to the
Administrative Agent with sufficient copies, originally
executed where appropriate, for each Bank) each, unless
otherwise noted, dated the Effective Date:
(i) Certified copies of its Certificate of
Incorporation, together with a good standing
certificate from the Secretary of State of the
jurisdiction of its incorporation, each to be
dated a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the
Effective Date by its corporate secretary or an
assistant secretary;
(iii) Resolutions of its Board of Directors,
directly or indirectly, approving and authorizing
the execution, delivery and performance of this
Agreement and any other documents, instruments and
certificates required to be executed by the
Company in connection herewith and, directly or
indirectly, approving and authorizing the
execution, delivery and payment of the Notes to be
issued by the Company and the incurrence of the
Loans, each certified as of the Effective Date by
its corporate secretary or an assistant secretary
as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates with
respect to the Persons executing this Agreement
and the Notes;
(v) Executed copies of this Agreement;
(vi) Revolving Notes executed by the Company,
substantially in the form of Exhibit A-1 annexed
hereto and in accordance with Section 2.06(a)
hereof, drawn to the order of each Bank and with
appropriate insertions; and
(vii) Such other documents as the Administrative
Agent may reasonably request.
(b) The Administrative Agent shall have received an
originally executed copy of the favorable written
opinion of Xxxxx X. Xxxxxxx, Esq., General Counsel of
the Company, dated as of the Effective Date,
substantially in the form of Exhibit B annexed hereto;
the Company hereby expressly instructs such counsel to
prepare such opinion and deliver it to the Banks for
their benefit and such opinion shall contain a
statement to that effect.
(c) The Administrative Agent shall have received an
originally executed copy of the favorable written
opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Agents, dated as of the Effective Date,
substantially in the form of Exhibit C annexed hereto.
(d) The Credit Agreement, dated as of November 1,
1993, as amended (the "1993 Credit Agreement"), among
the Company, as the Borrower, the Banks listed therein
and Bankers Trust Company, as administrative agent, and
all commitments to lend thereunder shall have been
terminated and the obligations of the Borrowers
thereunder shall have been discharged in full.
Promptly thereafter, the notes issued by the Borrower
thereunder shall be returned by such lenders to the
Borrower, marked "Cancelled".
The Administrative Agent shall promptly notify the Company, the
Banks and the Administrative Agent of the satisfaction
of the conditions set forth in this Section 3.01, and
such notice shall be conclusive and binding on all
parties hereto.
Section 3.2. Conditions to All Loans. The
obligation of each Bank to make any Loans pursuant to a
Notice of Borrowing is subject to prior or concurrent
satisfaction or waiver by the Required Banks in the
case of Syndicated Loans, and the Bank making the
relevant Loan in the case of Competitive Bid Loans, of
the following further conditions precedent:
(a) With respect to any such Loan, the
Administrative Agent shall have received, (i) before
the Funding Date thereof, an originally executed Notice
of Borrowing signed by any of the chief executive
officer, the chief financial officer, the treasurer or
any assistant treasurer of the Company (the furnishing
by the Company of each such Notice of Borrowing shall
be deemed to constitute a representation and warranty
of the Company that each of the conditions set forth in
Section 3.02(b) hereof (and, in the case of a Notice of
Competitive Bid Borrowing, Section 3.03 hereof) will be
satisfied on the related Funding Date);
(b) As of the Funding Date of such Loan:
(i) With respect to such Loan the
representations and warranties contained herein
shall be true, correct and complete in all
material respects on and as of that Funding Date
to the same extent as though made on and as of
that date, except that the representations and
warranties need not be true and correct to the
extent that changes in the facts and conditions on
which such representations and warranties are
based are required or permitted under this
Agreement, and except that the representations and
warranties set forth in Sections 4.04 and 4.05
shall not apply to Competitive Bid Loans which do
not increase the aggregate principal amount of
such Competitive Bid Loans then outstanding with
Banks making the same;
(ii) No event shall have occurred and be
continuing or would result from the consummation
of the Loans on such Funding Date and the use of
the proceeds thereof which would constitute (a) an
Event of Default or (b) a Potential Event of
Default;
(iii) Each Borrower shall have performed in all
material respects all agreements and satisfied in
all material respects all conditions which this
Agreement provides shall be performed by it on or
before such Funding Date;
(iv) No order, judgment or decree of any court,
arbitrator or governmental authority shall purport
to enjoin or restrain that Bank from making that
Loan; and
(v) The making of the Loans requested on such
Funding Date shall not violate Regulation G,
Regulation T, Regulation U or Regulation X of the
Board or any other regulation of the Board or the
Exchange Act.
Section 3.3. Conditions to All Competitive Bid
Loans.
(a) Each Borrower shall, upon the request of the
applicable Bank pursuant to Section 2.06(b) hereof, on
or before the Funding Date of any Competitive Bid Loan,
deliver to the Bank making such Competitive Bid Loan,
the Competitive Bid Note executed by such Borrower in
accordance with Section 2.06(b), substantially in the
form of Exhibit A-2 annexed hereto, drawn to the order
of such Bank with appropriate insertions.
(b) The obligation of each Bank to make any
Competitive Bid Loan is subject to concurrent
satisfaction of the further condition precedent that on
the date any Competitive Bid Loan is made there shall
be outstanding a publicly held issue of unsecured
Indebtedness of the Company described in clause (i) of
the definition of Indebtedness which ranks pari passu
with the Indebtedness represented by the Notes and
which is classified as long-term indebtedness in
accordance with generally accepted accounting
principles then applied by the Company and rated
greater than or equal to BBB- by Standard & Poor's
Ratings Services or any successor equivalent rating and
greater than or equal to Baa3 by Xxxxx'x Investors
Service, Inc. or any successor equivalent rating.
Section 3.4. Conditions to Loans to Subsidiary
Borrowers.
(a) Concurrently with or before the designation by
the Company of any of its Subsidiaries as a Subsidiary
Borrower, the Company shall deliver, or cause to be
delivered, to the Banks (or to the Administrative Agent
for the Banks with sufficient originally executed
copies, where appropriate, for each Bank) with respect
to such Subsidiary Borrower, each, unless otherwise
noted, dated the Designation Date:
(i) Certified copies of such Subsidiary
Borrower's Certificate of Incorporation, together
with a good standing certificate from the
Secretary of State of the State of incorporation
of such Subsidiary Borrower, each to be dated a
recent date prior to the Designation Date;
(ii) Copies of such Subsidiary Borrower's
Bylaws, certified as of the Designation Date by
its corporate secretary or an assistant secretary;
(iii) Resolutions of such Subsidiary Borrower's
Board of Directors approving and authorizing the
execution, delivery and performance of this
Agreement and any other documents, instruments and
certificates to be executed by such Subsidiary
Borrower in connection herewith or therewith and
approving and authorizing the execution, delivery
and payment of the Notes to be issued by such
Subsidiary Borrower and the incurrence of Loans by
such Subsidiary Borrower, each certified as of the
Designation Date by its corporate secretary or an
assistant secretary as being in full force and
effect without modification or amendment;
(iv) Signature and incumbency certificates of
such Subsidiary Borrower's officers executing a
Loan Assumption Agreement substantially in the
form of Exhibit G hereto and the Notes issued by
it;
(v) Revolving Notes executed by such
Subsidiary Borrower substantially in the form of
Exhibit A-1 annexed hereto and in accordance with
Section 2.06, drawn to the order of each Bank and
with appropriate insertions, with such changes as
are acceptable to the Administrative Agent to
reflect that such Revolving Notes are obligations
of such Subsidiary Borrower, rather than of the
Company; and
(vi) Such other documents as the Administrative
Agent may reasonably request.
(b) The Administrative Agent shall have received an
originally executed copy of the favorable written
opinion of Xxxxx X. Xxxxxxx, Esq, General Counsel of
the Company, dated as of the Designation Date, relating
to such Subsidiary Borrower, substantially in the form
of Exhibit B annexed hereto, with such changes as are
acceptable to the Administrative Agent to reflect that
such opinion relates to such Subsidiary Borrower,
rather than to the Company; the Company hereby
expressly instructs such counsel to prepare such
opinion and deliver it to the Banks for their benefit
and such opinion shall contain a statement to that
effect.
ARTICLE 4
Representations and Warranties
In order to induce the Banks to enter into this
Agreement and to make the Loans, the Company and each
Borrower (as to itself only) represents and warrants to
each Bank that the following statements are true,
correct and complete:
Section 4.1. Organization, Powers and Good
Standing.
(a) Organization and Powers. Each Borrower is a
corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation. Each Borrower has all requisite
corporate power and authority (i) to own and operate
its properties and to carry on its business as now
conducted and proposed to be conducted, except where
the lack of corporate power and authority would not
have a Material Adverse Effect and (ii) to enter into
this Agreement and to carry out the transactions
contemplated hereby, and to issue the Notes.
(b) Good Standing. Each Borrower is in good
standing wherever necessary to carry on its present
business and operations, except in jurisdictions in
which the failure to be in good standing would not have
a Material Adverse Effect.
Section 4.2. Authorization of Borrowing, Etc.
(a) Authorization of Borrowing. The execution,
delivery and performance of this Agreement (and in the
case of each Subsidiary Borrower, its Loan Assumption
Agreement), and the issuance, delivery and payment of
the Notes and the borrowing of the Loans have been duly
authorized by all necessary corporate action by each
Borrower.
(b) No Conflict. The execution, delivery and
performance by each Borrower of this Agreement (and in
the case of each Subsidiary Borrower, its Loan
Assumption Agreement) and the issuance, delivery and
performance of the Notes by each Borrower, and the
borrowing of the Loans do not and will not (i) violate
any provision of law applicable to the Company or any
of its Subsidiaries, (ii) violate the Certificate of
Incorporation or Bylaws of the Company or any of its
Subsidiaries, (iii) violate any order, judgment or
decree of any court or other Governmental Authority
binding on the Company or any of its Subsidiaries, (iv)
conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default
under any Contractual Obligation of the Company or any
of its Subsidiaries, or (v) result in or require the
creation or imposition of any material Lien upon any of
the material properties or assets of the Company or any
of its Subsidiaries or require any approval of
stockholders or any approval or consent of any Person
under any Contractual Obligation of the Company or any
of its Subsidiaries other than such approvals and
consents which have been or will be obtained on or
before the Effective Date.
(c) Governmental Consents. The execution, delivery
and performance by each Borrower of this Agreement (and
in the case of each Subsidiary Borrower, its Loan
Assumption Agreement) and the issuance, delivery and
performance by each Borrower of the Notes will not
require on the part of such Borrower any registration
with, consent or approval of, or notice to, or other
action to, with or by, any Governmental Authority other
than any such registration, consent, approval, notice
or other action which has been duly made, given or
taken.
(d) Binding Obligation. This Agreement is and each
of the Notes and each Loan Assumption Agreement when
executed and delivered and each Loan when made will be
a legally valid and binding obligation of the Company
and/or the applicable Borrower, as the case may be,
enforceable against the Company and/or the applicable
Borrower, as the case may be, in accordance with its
respective terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to
enforceability.
Section 4.3. Financial Condition. The Company
has delivered to the Banks the audited consolidated
financial statements of the Company and its
subsidiaries for the year ended January 3, 1998 as set
forth in the 1997 Annual Report to Shareholders of the
Company (the "Financial Statements"). All such
Financial Statements were prepared in accordance with
generally accepted accounting principles except for the
preparation of footnote disclosures for the unaudited
statements. All such Financial Statements fairly
present the consolidated financial position of the
Company and its subsidiaries as at the respective dates
thereof and the consolidated statements of income and
cash flows of the Company and its Subsidiaries for each
of the periods covered thereby, subject, in the case of
any unaudited interim financial statements, to changes
resulting from normal year-end adjustments.
Section 4.4. No Adverse Material Change. Since
January 3, 1998, there has been no change in the
business, operations, properties, assets or condition
(financial or otherwise) of the Company or any of its
Subsidiaries, which has been, either in any case or in
the aggregate, materially adverse to the Company and
its Subsidiaries, taken as a whole.
Section 4.5. Litigation. Except as disclosed in
the Company's Annual Report on Form 10-K for the fiscal
year ended January 3, 1998 and in the Financial
Statements delivered to the Banks pursuant to Section
4.03 hereof, there is no action, suit, proceeding,
governmental investigation (including, without
limitation, any of the foregoing relating to laws,
rules and regulations relating to the protection of the
environment, health and safety) of which the Company
has knowledge or arbitration (whether or not
purportedly on behalf of the Company or any of its
Subsidiaries) at law or in equity or before or by any
Governmental Authority, domestic or foreign, pending
or, to the knowledge of the Company, threatened against
or affecting the Company or any of its Subsidiaries or
any property of the Company or any of its Subsidiaries
which is probable of being successful and which would
have a Material Adverse Effect.
Section 4.6. Payment of Taxes. Except to the
extent permitted by Section 5.03, all taxes,
assessments, fees and other governmental charges upon
the Company and each of its Subsidiaries and upon their
respective properties, assets, income and franchises
which are material to the Company and its Subsidiaries,
taken as a whole, and were due and payable, have been
paid.
Section 4.7. Governmental Regulation. (a)
Neither the Company nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding
Company Act of 1935 or to any federal or state statute
or regulation limiting its ability to incur
Indebtedness for money borrowed as contemplated by this
Agreement.
(b) Neither the Company nor any of its Subsidiaries
is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 4.8. Securities Activities. Neither the
Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in
the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
Section 4.9. ERISA Compliance.
(a) The Company and its Subsidiaries and each of
their respective ERISA Affiliates are in compliance in
all material respects with all applicable provisions of
ERISA and the regulations and published interpretations
thereunder with respect to all Pension Plans and all
Multiemployer Plans.
(b) No Termination Event has occurred or is
reasonably expected to occur with respect to any
Pension Plan, as the case may be, which has resulted or
would result in any material liability to the PBGC (or
any successor thereto) or to any other Person under
Section 4062, 4063, or 4064 of ERISA.
(c) Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur
any withdrawal liability under Part E of Title IV of
ERISA to any Multiemployer Plan individually or in the
aggregate in excess of $50,000,000.
(d) The sum of the amount of unfunded benefit
liabilities under all Pension Plans (excluding each
Pension Plan with an amount of unfunded benefit
liabilities of zero or less) is not more than
$100,000,000.
(e) Neither the Company nor any of its ERISA
Affiliates has incurred any accumulated funding
deficiency (whether or not waived) with respect to any
Pension Plan individually or in the aggregate in excess
of $2,000,000.
(f) Neither the Company nor any of its ERISA
Affiliates has or reasonably expects to become subject
to a lien in favor of any Pension Plan under
Section 302(f) of ERISA individually or in the
aggregate in excess of $1,000,000.
(g) Neither the Company nor any of its ERISA
Affiliate has or reasonably expects to become subject
to a requirement to provide security to any Pension
Plan under Section 307 of ERISA individually or in the
aggregate in excess of $10,000,000.
As used in this subsection 4.09, the term "amount
of unfunded benefit liabilities" has the meaning
specified in Section 4001(a)(18) of ERISA, and the term
"accumulated funding deficiency" has the meaning
specified in Section 302 of ERISA and Section 412 of
the Code.
Section 4.10. Certain Fees.
No broker's or finder's fee or commission will be
payable by the Company with respect to the offer,
issuance and sale of any Note or the borrowing of any
Loan comprising a Syndicated Loan or Competitive Bid
Loan or the execution, delivery and performance of this
Agreement.
ARTICLE 5
Affirmative Covenants
The Company covenants and agrees that, so long as
any of the Commitments hereunder shall be in effect and
until payment in full of all Loans and Notes unless
Required Banks shall otherwise give prior written
consent, it shall perform all covenants in this Section
5:
Section 5.1. Financial Statements and Other
Reports.
The Company will maintain, and cause each of its
subsidiaries to maintain, a system of accounting
established and administered in accordance with sound
business practices to permit preparation of
consolidated financial statements in conformity with
generally accepted accounting principles in effect from
time to time. The Company will deliver to the Banks
(except to the extent otherwise expressly provided
below in subsection 5.01(b)(ii)):
(a) (i) as soon as practicable and in any event
within 45 days after the end of each fiscal quarter
ending after the Effective Date in the Company's fiscal
year the consolidated balance sheet of the Company and
its consolidated subsidiaries as at the end of such
period, and the related consolidated statements of
income and cash flows of the Company and its
consolidated subsidiaries in each case certified by the
chief financial officer or controller of the Company
that they fairly present the financial condition of the
Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations and
changes in their cash flows, subject to changes
resulting from audit and normal year-end adjustments,
based on their respective normal accounting procedures
applied on a consistent basis (except as noted
therein);
(ii) as soon as practicable and in any event
within 90 days after the end of each fiscal year the
consolidated balance sheet of the Company and its
consolidated subsidiaries as at the end of such year
and the related consolidated statements of income and
cash flows of the Company and its consolidated
subsidiaries for such fiscal year, accompanied by a
report thereon of independent certified public
accountants of recognized national standing selected by
the Company which report shall be unqualified as to
going concern and scope of audit and shall state that
such consolidated financial statements present fairly
the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and
the results of their operations and changes in their
cash flows for the periods indicated in conformity with
generally accepted accounting principles applied on a
basis consistent with prior years (except as noted in
such report) and that the examination by such
accountants in connection with such consolidated
financial statements has been made in accordance with
generally accepted auditing standards;
(b) (i) together with each delivery of financial
statements of the Company and its consolidated
subsidiaries pursuant to subdivisions (a)(i) and
(a)(ii) above, (A) an Officer's Certificate of the
Company stating that the signer has reviewed the terms
of this Agreement and has made, or caused to be made
under such signer's supervision, a review in reasonable
detail of the transactions and condition of the Company
and its consolidated subsidiaries during the accounting
period covered by such financial statements and that
such review has not disclosed the existence during or
at the end of such accounting period, and that the
signer does not have knowledge of the existence as at
the date of the Officers' Certificate, of any condition
or event which constitutes an Event of Default or
Potential Event of Default, or, if any such condition
or event existed or exists, specifying the nature and
period of existence thereof and what action the Company
has taken, is taking and proposes to take with respect
thereto; and (B) a Compliance Certificate demonstrating
in reasonable detail compliance (as determined in
accordance with GAAP during and at the end of such
accounting periods) with the restrictions contained in
Section 6.03 and, in addition, a written statement of
the chief accounting officer, chief financial officer,
any vice president or the treasurer or any assistant
treasurer of the Company describing in reasonable
detail the differences between the financial
information contained in such financial statements and
the information contained in the Compliance Certificate
relating to the Company's compliance with Section 6.03
hereof;
(ii) promptly upon their becoming available
but only to the extent requested by a Bank, copies of
all publicly available financial statements, reports,
notices and proxy statements sent or made available
generally by the Company to its security holders or by
any Subsidiary of the Company to its security holders
other than the Company or another Subsidiary, of all
regular and periodic reports and all registration
statements and prospectuses, if any, filed by the
Company or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission
and of all press releases and other statements made
available generally by the Company or any Subsidiary to
the public concerning material developments in the
business of the Company and its Subsidiaries;
(iii) promptly upon the chairman of the board,
the chief executive officer, the president, the chief
accounting officer, the chief financial officer, the
treasurer or the general counsel of the Company
obtaining knowledge (a) of any condition or event which
constitutes an Event of Default or Potential Event of
Default, (b) that any Person has given any notice to
the Company or any Subsidiary of the Company or taken
any other action with respect to a claimed default or
event or condition of the type referred to in
Section 7.02, or (c) of a material adverse change in
the business, operations, properties, assets or
condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole, an Officer's
Certificate specifying the nature and period of
existence of any such condition or event, or specifying
the notice given or action taken by such holder or
Person and the nature of such claimed default, Event of
Default, Potential Event of Default, event or
condition, and what action the Company has taken, is
taking and proposes to take with respect thereto; and
(iv) with reasonable promptness, such other
information and data with respect to the Company or any
of its subsidiaries as from time to time may be
reasonably requested by any Bank.
Section 5.2. Conduct of Business and Corporate
Existence. Except as permitted by Section 6.01, the
Company will at all times preserve and keep in full
force and effect its corporate existence and rights and
franchises material to the business of the Company and
its Subsidiaries, taken as a whole.
Section 5.3. Payment of Taxes. The Company will,
and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or
in respect of any of its franchises, business, income
or property when due which are material to the Company
and its Subsidiaries, taken as a whole, provided that
no such amount need be paid if being contested in good
faith by appropriate proceedings promptly instituted
and diligently conducted and if such reserve or other
appropriate provision, if any, as shall be required in
conformity with generally accepted accounting
principles shall have been made therefor.
Section 5.4. Maintenance of Properties;
Insurance. The Company will maintain or cause to be
maintained in good repair, working order and condition
all material properties used or useful in its business
of the Company and its Subsidiaries and from time to
time will make or cause to be made all appropriate
material repairs and renewals thereto and replacements
thereof. The Company will maintain or cause to be
maintained, with financially sound and reputable
insurers, insurance with respect to its material
properties and business and the material properties and
business of its Subsidiaries against loss or damage of
the kinds customarily insured against by corporations
of established reputation engaged in the same or
similar businesses and similarly situated, of such
types and in such amounts as are customarily carried
under similar circumstances by such other corporations
and to the extent reasonably prudent may self-insure.
Section 5.5. Inspection. The Company shall
permit any authorized representatives designated by any
Bank to visit and inspect any of the properties of the
Company or any of its Subsidiaries, including its and
their financial and accounting records, and, to make
copies and take extracts therefrom, and to discuss its
and their affairs, finances and accounts with its and
their officers, all upon reasonable notice and at such
reasonable times during normal business hours and as
often as may be reasonably requested; provided that any
confidential information so obtained by any Bank shall
remain confidential except where disclosure is mandated
by applicable laws or such information otherwise
becomes public other than by a breach by such Bank of
this Section 5.05; provided further that this Section
shall not prohibit any Bank from disclosing to any
Agent (or any Agent from disclosing to any Bank) any
Event of Default or Potential Event of Default.
Section 5.6. Compliance with Laws. The Company
and its Subsidiaries shall exercise all due diligence
in order to comply in all material respects with the
requirements of all applicable laws, rules, regulations
and orders of any Governmental Authority (including,
without limitation, laws, rules and regulations
relating to the disposal of hazardous wastes and
asbestos in the environment and ERISA), noncompliance
with which would have a Material Adverse Effect.
ARTICLE 6
Negative Covenants
The Company covenants and agrees that, so long as
any of the Commitments shall be in effect and until
payment in full of all of the Loans and the Notes,
unless the Required Banks shall otherwise give prior
written consent, it will perform all covenants in this
Section 6:
Section 6.1. Merger. The Company may not
consolidate with, merge with or into or sell, lease or
otherwise transfer all or substantially all of its
assets (as an entirety or substantially as an entirety
in one transaction or a series of related transactions)
to any Person unless:
(i) the Company shall be the continuing
Person, or the Person (if other than the Company)
formed by such consolidation or into which the
Company is merged or to which the properties and
assets of the Company are sold, leased or
transferred shall be a solvent corporation
organized and existing under the laws of the
United States or any State thereof or the District
of Columbia and shall expressly assume, by an
agreement, executed and delivered to the Banks, in
form and substance reasonably satisfactory to the
Required Banks, all of the obligations of the
Company under this Agreement, the Notes and the
Competitive Bid Loans;
(ii) immediately before and immediately after
giving effect to such transaction, no Event of
Default and no Potential Event of Default shall
have occurred and be continuing (with the interest
coverage ratio required by Section 6.03(a) being
calculated on a pro forma basis for the four
fiscal quarters of the Company and such Person
ending immediately prior to the date of such
consolidation, merger, sale, lease or transfer);
and
(iii) the Company shall deliver to the Banks an
Officer's Certificate (attaching the arithmetic
computations to demonstrate compliance with
Section 6.03) and an opinion of counsel, each
stating that such consolidation, merger, sale,
lease or transfer and such agreement comply with
this Section 6.03 and that all conditions
precedent herein provided for relating to such
transaction have been complied with.
Section 6.2. Liens. The Company will not, and
will not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist
any Lien on or with respect to any property or asset
(including any document or instrument in respect of
goods or accounts receivable) (other than Margin Stock)
of the Company or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits
therefrom, except:
(i) Liens in existence on the date hereof;
(ii) Permitted Encumbrances;
(iii) Liens on accounts receivable sold with
recourse;
(iv) Liens incurred in connection with the
acquisition of equipment by the Company or any of
its Subsidiaries for a cost less than $2,000,000
in any case, provided that the principal amount of
the indebtedness so secured shall not exceed in
any case 100% of the cost to the Company or such
Subsidiary of the equipment acquired and provided,
further, that each such Lien shall cover only the
equipment acquired and the proceeds thereof,
substitutions therefor and replacements thereof;
and
(v) Liens (other than Liens permitted by
clauses (i)-(iv) above) securing obligations of
the Company and its Subsidiaries (including
Indebtedness) not in excess of an amount equal to
5% of the consolidated total assets of the Company
and its Subsidiaries, all as determined in
accordance with GAAP on a consolidated basis for
the Company and its Subsidiaries.
Nothing in this Section 6.02 shall prohibit the
sale, assignment, transfer, conveyance or other
disposition of any Margin Stock owned by the Company or
any of its Subsidiaries at its fair value, or the
creation, incurrence, assumption or existence of any
Lien on or with respect to any Margin Stock.
Section 6.3. Financial Covenants.
(a) Minimum Consolidated Net Worth.
The Company will not permit its Consolidated Net
Worth (less the Textron Affiliate Amount) at any time
during any fiscal quarter (each a "Measurement
Quarter") ending on and after January 3, 1998 to be
less than the sum of (x) $3,000,000,000 plus (y) an
amount equal to 40% of the Consolidated Net Income of
the Company for each fiscal quarter of the Company in
which the Company had a Consolidated Net Income for
such fiscal quarter in excess of $0 and which such
fiscal quarter commenced on or after January 4, 1998
and ended on or prior to the first day of such
Measurement Quarter plus (z) 100% of the proceeds of
any equity issuances by the Company (excluding
issuances as a result of the exercise of employee stock
options) on and after the date of this Agreement.
(b) Interest Coverage Ratio.
The Company shall not permit the ratio of (i) Con
solidated EBITDA to (ii) Consolidated Interest Expense
at any date to be less than 1.5 to 1.0 calculated at
the end of each fiscal quarter of the Company by
reference to the four fiscal quarter periods ending on
such date of calculation.
Section 6.4. Existing Subordinated Debt. The
Company will not amend or otherwise change the terms of
any Existing Subordinated Debt except as specifically
permitted hereby, or make, directly or indirectly, any
payment consistent with an amendment or change thereto,
if the effect of such amendment or change is to
increase the interest rate on such Debt, change the
dates upon which payments of principal or interest are
due thereon, change any event of default or condition
to an event of default with respect to such Debt, grant
any security interest in favor of such Existing
Subordinated Debt, change the redemption provisions
thereof, change the subordination provisions thereof,
cause the Existing Subordinated Debt to be guaranteed
by any Person or which, together with all other
amendments or changes made, increase materially the
obligations of the obligor or confer additional rights
on the holder of such Debt which would be adverse to
the Company or the Banks.
Section 6.5. Use of Proceeds. Notwithstanding
any provisions of this Agreement to the contrary, no
portion of the proceeds of any borrowing under this
Agreement shall be used by the Company in any manner
which would cause the borrowing or the application of
such proceeds to violate Regulation G, Regulation U,
Regulation T, or Regulation X of the Board or any other
regulation of the Board or to violate the Exchange
Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
ARTICLE 7
Events of Default
If any of the following conditions or events
("Events of Default") shall occur and be continuing:
Section 7.1. Failure to Make Payments When Due.
Failure to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration,
by notice of prepayment or otherwise; or failure to pay
any interest on any Loan or any other amount due under
this Agreement when due and such default shall continue
for 5 days; or
Section 7.2. Default in Other Agreements.
(i) Failure of the Company or any of its
Subsidiaries to pay when due any principal or
interest on any Indebtedness (other than
Indebtedness referred to in Section 7.01) in an
individual principal amount of $20,000,000 or more
or items of Indebtedness with an aggregate
principal amount of $20,000,000 or more beyond the
end of any period prior to which the obligee
thereunder is prohibited from accelerating payment
thereunder or any grace period after the maturity
thereof, or (ii) breach or default of the Company
or any of its Subsidiaries (other than a default
arising under any restrictive provision relating
to any sale, pledge or other disposition of Margin
Stock contained in a lending agreement to which
any Bank or Affiliate thereof is a party) with
respect to any other term of (y) any evidence of
any Indebtedness in an individual principal amount
of $20,000,000 or more or items of Indebtedness
with an aggregate principal amount of $20,000,000
or more; or (z) any loan agreement, mortgage,
indenture or other agreement relating thereto, if
such failure, default or breach shall continue for
more than the period of grace, if any, specified
therein and shall not at the time of acceleration
hereunder be cured or waived; or
Section 7.3. Breach of Certain Covenants.
Failure of any Borrower to perform or comply with any
term or condition contained in Section 5.02, 6.01,
6.03, 6.04 or 6.05 of this Agreement; or
Section 7.4. Breach of Warranty. Any
representation or warranty made by any Borrower in this
Agreement or in any statement or certificate at any
time given by such Person in writing pursuant hereto or
thereto or in connection herewith or therewith shall be
false in any material respect on the date as of which
made; or
Section 7.5. Other Defaults under Agreement. Any
Borrower shall default in the performance of or
compliance with any term contained in this Agreement
other than those referred to above in Section 7.01,
7.03 or 7.04 and such default shall not have been
remedied or waived within 30 days after receipt of
notice from the Administrative Agent or any Bank of
such default; or
Section 7.6. Involuntary Bankruptcy; Appointment
of Receiver, etc. (a) A court having jurisdiction in
the premises shall enter a decree or order for relief
in respect of the Company or any of its Restricted
Subsidiaries or any Subsidiary Borrower in an
involuntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be
granted under any applicable federal or state law; or
(b) an involuntary case is commenced against the
Company or any of its Restricted Subsidiaries or any
Subsidiary Borrower under any applicable bankruptcy,
insolvency or other similar law now or hereafter in
effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company
or any of its Restricted Subsidiaries or any Subsidiary
Borrower, or over all or a substantial part of its
property, shall have been entered; or an interim
receiver, trustee or other custodian of the Company or
any of its Restricted Subsidiaries or any Subsidiary
Borrower for all or a substantial part of the property
of the Company or any of its Restricted Subsidiaries or
any Subsidiary Borrower is involuntarily appointed; or
a warrant of attachment, execution or similar process
is issued against any substantial part of the property
of the Company or any of its Restricted Subsidiaries or
any Subsidiary Borrower, and the continuance of any
such events in subpart (b) for 60 days unless
dismissed, bonded or discharged; or
Section 7.7. Voluntary Bankruptcy; Appointment of
Receiver, etc. The Company or any of its Restricted
Subsidiaries or any Subsidiary Borrower shall have an
order for relief entered with respect to it or commence
a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the
entry of an order for relief in an involuntary case, or
to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the
appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial
part of its property; the making by the Company or any
of its Restricted Subsidiaries or any Subsidiary
Borrower of any assignment for the benefit of
creditors; or the inability or failure of the Company
or any of its Restricted Subsidiaries or any Subsidiary
Borrower, or the admission by the Company or any of its
Restricted Subsidiaries or any Subsidiary Borrower in
writing of its inability to pay its debts as such debts
become due; or the Board of Directors of the Company or
any Restricted Subsidiary or any Subsidiary Borrower
(or any committee thereof) adopts any resolution or
otherwise authorizes action to approve any of the
foregoing; or
Section 7.8. Judgments and Attachments. Any
money judgment, writ or warrant of attachment, or
similar process involving individually or in the
aggregate an amount in excess of $50,000,000 shall be
entered or filed against the Company or any Restricted
Subsidiary or any of its assets and shall remain
undischarged, unvacated, unbonded or unstayed, as the
case may be, for a period of 30 days or in any event
later than five days prior to the date of any proposed
sale thereunder; or
Section 7.9. Dissolution. Any order, judgment or
decree shall be entered against the Company or any of
its Restricted Subsidiaries or any Subsidiary Borrower
decreeing the dissolution or split up of the Company or
that Restricted Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of 30
days; or
Section 7.10. ERISA Title IV Liabilities.
(i) The Company or any of its ERISA Affiliates
shall terminate or suffer the termination of (by
action of the PBGC or any successor thereto) any
Pension Plan, or shall suffer the appointment of
or the institution of proceedings to appoint a
trustee to administer any Pension Plan, or shall
withdraw (under Section 4063 of ERISA) from a
Pension Plan, if as of the date thereof or any
subsequent date the sum of the Company's and each
ERISA Affiliate's liabilities to the PBGC or any
other Person under Sections 4062, 4063 and 4064 of
ERISA (calculated after giving effect to the tax
consequences thereof) resulting from or otherwise
associated with the above-described events exceeds
$50,000,000; or
(ii) The Company or any of its ERISA Affiliates
shall withdraw from any Multiemployer Plan and the
aggregate amount of withdrawal liability
(determined pursuant to Sections 4201 et seq. of
ERISA) to which the Company and its ERISA
Affiliates become obligated to all Multiemployer
Plans requires annual payments in excess of
$5,000,000;
THEN (i) upon the occurrence of any Event of
Default described in the foregoing Sections 7.06 or
7.07, the unpaid principal amount of and accrued
interest on all the Loans shall automatically become
immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all
of which are hereby expressly waived by the Company and
each Borrower and the obligation of each Bank to make
any Loans hereunder shall thereupon terminate, and
(ii) upon the occurrence of any other Event of Default,
the Required Banks may, by written notice to the
Company and each Borrower, (A) terminate the
Commitments and the obligation of each Bank to make any
Loan hereunder shall thereupon terminate and/or (B)
declare the unpaid principal amount of and accrued
interest on all the Loans to be, and the same shall
forthwith become, immediately due and payable.
Nevertheless, if at any time within 60 days after
acceleration of the maturity of the Loans, each
Borrower shall pay all arrears of interest and all
payments on account of the principal which shall have
become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in
this Agreement or the Notes) and all other fees and
expenses then owed hereunder and all Events of Default
and Potential Events of Default (other than non-payment
of principal of and accrued interest on the Loans and
the Notes), in each case due and payable solely by
virtue of acceleration) shall be remedied or waived
pursuant to Section 10.06, then the Required Banks by
written notice to the Company may (in their sole
discretion) rescind and annul the acceleration and its
consequences; but such action shall not affect any
termination of the Commitments or any subsequent Event
of Default or Potential Event of Default or impair any
right consequent thereon.
Section 7.11. Redenomination Upon Acceleration.
Upon the acceleration of the Loans outstanding
hereunder following the occurrence and the continuance
of any Event of Default, the Required Banks may, at
their option, and, notwithstanding Section 2.12(m) of
this Agreement, Redenominate all Eurocurrency Rate
Loans denominated in Alternative Currencies and then
outstanding into Eurocurrency Rate Loans or Base Rate
Loans denominated in Dollars. Such Redenomination
shall be equal to the Currency Equivalent (calculated
at the date of Redenomination) in Dollars of such
Eurocurrency Rate Loans. In addition, the affected
Borrower hereby agrees to indemnify each Bank against
all losses contemplated by Section 2.12(e) of this
Agreement suffered as a result of such Redenomination.
In addition, if upon any Event of Default, any payment
default, or for purposes of obtaining a judgment in any
court for any purpose hereunder (including a proceeding
under the Bankruptcy Code), it becomes necessary to
determine the Currency Equivalent in Dollars of any
payment obligation hereunder (whether with respect to a
principal amount or interest or otherwise) which is
payable in any other currency (an "Other Currency
Obligation"), such determination shall be made at the
time (or from time to time) and to the extent payment
(in whole or in part) has actually been made by the
affected Borrower or a judgment has been rendered. A
certificate of a Bank as to the amount required to be
paid by the affected Borrower under this Section shall
accompany a demand for such payment and shall be
conclusive and binding for all purposes, absent
manifest error.
ARTICLE 8
Agents
Section 8.1. Appointment. Each of the Banks
hereby appoints and authorizes each Agent to act
hereunder and under the other instruments and
agreements referred to herein as its agent hereunder
and thereunder. Each Agent agrees to act as such upon
the express conditions contained in this Section 8.
The provisions of this Section 8 are solely for the
benefit of the Agents, and neither the Company nor any
other Borrower shall have any rights as a third party
beneficiary of or any obligations under any of the
provisions hereof. In performing its functions and
duties under this Agreement, each Agent shall act
solely as agent of the Banks and does not assume and
shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for
the Company or any other Borrower.
Section 8.2. Powers; General Immunity.
(a) Duties Specified. Each Bank irrevocably
authorizes each Agent to take such action on such
Bank's behalf and to exercise such powers hereunder and
under the other instruments and agreements referred to
herein as are specifically delegated to such Agent by
the terms hereof and thereof, together with such powers
as are reasonably incidental thereto. The Agents shall
have only those duties and responsibilities which are
expressly specified in this Agreement and each may
perform such duties by or through its agents or
employees. The duties of the Agents shall be
mechanical and administrative in nature; and no Agent
shall have by reason of this Agreement a fiduciary or
trust relationship in respect of any Bank; and nothing
in this Agreement, expressed or implied, is intended to
or shall be so construed as to impose upon the Agents
any obligations in respect of this Agreement or the
other instruments and agreements referred to herein
except as expressly set forth herein or therein.
(b) No Responsibility for Certain Matters. No
Agent shall be responsible to any Bank for the
execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this
Agreement or the Notes issued hereunder or any Loan,
or for any representations, warranties, recitals or
statements made herein or therein or made in any
written or oral statement or in any financial or other
statements, instruments, reports, certificates or any
other documents in connection herewith or therewith
furnished or made by such Agent to any Bank or by or on
behalf of the Borrower to such Agent or any Bank, or
for the accuracy of any information relating to
Competitive Bid Loans (including as to amounts
outstanding at any time), or be required to ascertain
or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use
of the proceeds of the Loans, or of the existence or
possible existence of any Event of Default or Potential
Event of Default.
(c) Exculpatory Provisions. Neither any Agent nor
any of their respective officers, directors, employees
or agents shall be responsible or liable to any Bank
for any action taken or omitted hereunder or under any
of the other Loan Documents or in connection herewith
or therewith unless caused by its or their gross
negligence or willful misconduct. If an Agent shall
request instructions from any Bank with respect to any
act or action (including the failure to take an action)
in connection with this Agreement or the Notes, such
Agent shall be entitled to refrain from such act or
taking such action unless and until such Agent shall
have received instructions from the Required Banks.
Without prejudice to the generality of the foregoing,
(i) the Agents shall be entitled to rely, and shall be
fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and
shall be protected in relying on opinions and judgments
of attorneys (who may be attorneys for the Borrower),
accountants, experts and other professional advisors
selected by it; and (ii) no Bank shall have any right
of action whatsoever against any Agent as a result of
such Agent acting or (where so instructed) refraining
from acting under this Agreement, any Note or the other
instruments and agreements referred to herein or
therein in accordance with the instructions of the
Required Banks. The Agents shall be entitled to
refrain from exercising any power, discretion or
authority vested in it under this Agreement, any Note
or the other instruments and agreements referred to
herein or therein unless and until it has obtained the
instructions of the Required Banks.
(d) Agents Entitled to Act as Bank. The agency
hereby created shall in no way impair or affect any of
the rights and powers of, or impose any duties or
obligations upon, any Agent in its respective
individual capacity as a Bank hereunder. With respect
to its participation in the Loans, each of Xxxxxx, The
Xxxxx Manhattan Bank, Citibank, N.A. (as an affiliate
of Citicorp Securities, Inc.) and Deutsche Bank AG, New
York Branch shall have the same rights and powers
hereunder as any other Bank and may exercise the same
as though it were not performing the duties and
functions delegated to it hereunder, and the term
"Bank" or "Banks" or any similar term shall, unless the
context clearly otherwise indicates, include the Agents
in their respective individual capacity. Each of
Xxxxxx, The Xxxxx Manhattan Bank, Citibank, N.A. (as an
affiliate of Citicorp Securities, Inc.), Deutsche Bank
AG, New York Branch and their respective Affiliates may
accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial
advisory or other business with the Company or any
Affiliate or Subsidiary of the Company as if it were
not performing the duties specified herein, and may
accept fees and other consideration from the Company or
any such Affiliate or Subsidiary for services in
connection with this Agreement or the Notes and
otherwise without having to account for the same to the
Banks.
Section 8.3. Representations and Warranties; No
Responsibility for Appraisal of Creditworthiness. Each
Bank represents and warrants that it has made its own
independent investigation of the financial condition
and affairs of the Company and each other Borrower in
connection with the making of the Loans hereunder and
has made and shall continue to make its own appraisal
of the creditworthiness of the Company. No Agent shall
have any duty or responsibility either initially or on
a continuing basis to make any such investigation or
any such appraisal on behalf of any Bank or to provide
any Bank with any credit or other information with
respect thereto whether coming into its possession
before the making of the Loan or any time or times
thereafter, and no Agent shall further have any
responsibility with respect to the accuracy of or the
completeness of the information provided to the Banks.
Section 8.4. Right to Indemnity. Each Bank
severally agrees to indemnify each Agent in accordance
with its Pro Rata Share to the extent such Agent shall
not have been reimbursed by the Company, for and
against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by
or asserted against such Agent in performing its duties
hereunder or under the other Loan Documents or in any
way relating to or arising out of this Agreement or the
Notes; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from an Agent's
gross negligence or willful misconduct. If any
indemnity furnished to an Agent for any purpose shall,
in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
Section 8.5. Payee of Note Treated as Owner.
Each Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer
thereof shall have been filed with the Administrative
Agent. Any request, authority or consent of any person
or entity who, at the time of making such request or
giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of that Note or of any
Note or Notes issued in exchange for such Note.
Section 8.6. Resignation by the Agents. (a) Any
Agent may resign from the performance of all its
functions and duties hereunder at any time by giving
30 days' prior written notice to the Company and the
Banks. Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant
to clauses (b) and (c) below or as otherwise provided
below.
(b) Upon any such notice of resignation, the
Required Banks shall appoint a successor Agent who
shall be satisfactory to the Company and shall be an
incorporated bank or trust company with a combined
surplus and undivided capital of at least $500 million.
(c) If a successor Agent shall not have been so
appointed within said 30 day period, the resigning
Agent, with the consent of the Company, shall then
appoint a successor Agent who shall serve in the same
capacity as the resigning Agent until such time, if
any, as the Required Banks, with the consent of the
Company, appoint a successor Agent as provided above.
Section 8.7. Successor Agents. Any Agent may
resign at any time as provided in Section 8.06 hereof.
Upon any such notice of resignation, the Required Banks
shall have the right, upon five days' notice to the
Company and subject to Section 8.06 hereof, to appoint
a successor Agent. Upon the acceptance of any
appointment by a successor Agent, that successor Agent
shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as an Agent
under this Agreement. After any retiring Agent's
resignation hereunder as an Agent the provisions of
this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
an Agent under this Agreement.
ARTICLE 9
Guarantee
Section 9.1. Guarantee. The Company hereby
unconditionally guarantees the due and punctual payment
of all principal of and interest on, and all other
amounts now or hereafter payable by any Subsidiary
Borrower to any Bank or Banks or any Agent under this
Agreement, any Note or any Loans (collectively,
"Guaranteed Obligations") when any of the same shall
become due, whether at stated maturity, by required
payment, declaration, acceleration, demand or otherwise
(including amounts which would become due but for the
operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. 362(a)), and agrees to
pay any and all costs and expenses (including
reasonable fees and disbursements of counsel) incurred
by any Agent or the Banks in enforcing any rights under
this Section 9.
The Company agrees that the Guaranteed Obligations
may be extended or renewed, in whole or in part,
without notice or further assent from it, and that the
Company will remain bound under this Section 9
notwithstanding any extension, renewal or other
alteration of any Guaranteed Obligation.
Section 9.2. Obligation Not Affected by Certain
Events. The Company waives presentation of, demand of,
and protest of any Guaranteed Obligation and also
waives notice of protest for nonpayment. The
obligations of the Company under this Section 9 shall
not be affected by:
(a) the failure of any Bank, any Agent or any other
Person to assert any claim or demand or to enforce any
right or remedy against any Subsidiary Borrower or any
successor thereto under the provisions of this
Agreement or any other agreement or otherwise;
(b) any extension or renewal of any provision of
any thereof;
(c) any change in the time, manner or place of
payment of any of the Guaranteed Obligations or any
rescission, waiver, amendment or modification of any of
the terms or provisions of this Agreement or any
instrument or agreement executed pursuant thereto; or
(d) the failure to perfect any security interest
in, or the release of, any of the security held by any
Bank, any Agent or other Person for any of the
Guaranteed Obligations.
Section 9.3. Guarantee of Payment. The Company
further agrees that this Section 9 constitutes a
guarantee of payment when due and not of collection and
waives any right to require that any resort be had by
any Bank or any Agent or any other Person to any
security held for payment of any of the Guaranteed
Obligations or to any balance of any deposit account or
credit on the books of any Bank, any Agent or any other
Person in favor of any Subsidiary Borrower or any other
Person.
Section 9.4. Obligation Not Subject to
Limitation. The obligation of the Company under this
Section 9 shall not be subject to any reduction,
limitation, impairment, or termination for any reason,
including, without limitation, any claim of waiver,
release, surrender, alteration or compromise of any of
the Guaranteed Obligations, and shall not be subject to
any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity,
illegality or unenforceability of any of the Guaranteed
Obligations or discharge of any Subsidiary Borrower
from any of the Guaranteed Obligations in a bankruptcy
or similar proceeding or otherwise. Without limiting
the generality of the foregoing, the obligation of the
Company under this Section 9 shall not be discharged or
impaired or otherwise affected by the failure of any
Bank or any Agent or any other Person to assert any
claim or demand or to enforce any remedy under this
Agreement or any other agreement or instrument or any
other guarantee, by any waiver or modification of any
thereof, by any default, or by any other act or thing
or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the
risk of the Company or which would otherwise operate as
a discharge of the Company as a matter of law or
equity.
The Company further agrees that this Section 9
shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part
thereof, of principal of, interest on or any other
amount with respect to, any Guaranteed Obligation is
rescinded or must otherwise be restored by any Bank,
any Agent or any other Person upon the bankruptcy or
reorganization of any Subsidiary Borrower, any other
Person or otherwise.
Section 9.5. Order of Payment. The Company
further agrees, in furtherance of the foregoing and not
in limitation of any other right which any Bank, any
Agent or any other Person may have at law or in equity
against the Company by virtue of this Section 9, upon
the failure of any Subsidiary Borrower to pay any of
the Guaranteed Obligations when and as the same shall
become due, whether by required prepayment,
acceleration or otherwise (including amounts which
would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. 362(a)), the Company will forthwith pay, or
cause to be paid, in cash, to the Administrative Agent
for the ratable benefit of the Banks or for the benefit
of any Agent, as the case may be, an amount equal to
the sum of the unpaid principal amount of such
Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations
(including, without limitation, interest which, but for
the filing of a petition in bankruptcy with respect to
any Subsidiary Borrower, would have accrued on such
Guaranteed Obligations) and all other Guaranteed
Obligations then owed to the Banks and such Agent as
aforesaid. All such payments shall be applied
promptly, from time to time, by the Administrative
Agent:
First, to the payment of the costs and expenses of
any collection, or other realization under this
Section 9, including reasonable compensation to the
Agents and their respective agents and counsel, and all
expenses, liabilities and advances made or incurred by
the Agents in connection therewith;
Second, to the payment of accrued but unpaid
interest on the Notes and the Loans comprising the
Guaranteed Obligations;
Third, to the payment of the Guaranteed
Obligations not paid pursuant to clause Second above;
Fourth, after payment in full of all Guaranteed
Obligations, to the Company or its successors or
assigns, or to whomsoever may be lawfully entitled to
receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining
from such payments.
Section 9.6. Waiver by the Company. The Company
hereby waives absolutely and irrevocably any claim
which it may have against any of the Subsidiary
Borrowers by reason of any payment to the Banks or any
Agent or to any other Person pursuant to or in respect
of the guarantee set forth in this Section 9, including
any claim by way of subrogation, contribution,
reimbursement, indemnity or otherwise.
ARTICLE 10
Miscellaneous
Section 10.1. Benefit of Agreement.
(a) This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided
that the Company may not assign or transfer any of its
interest hereunder without the prior written consent of
the Banks.
(b) Any Bank may make, carry or transfer Loans at,
to or for the account of, any of its branch offices or
the offices of an Affiliate of such Bank, provided that
doing so shall not cause any Borrower to incur any
additional costs hereunder at the time of such
transfer.
(c) Any Bank may assign its rights and delegate its
obligations under this Agreement and further may sell
participations in all or any part of any Loan or Loans
made by it or its Commitment or any other interest
herein or in its Notes to another bank or other entity;
provided that (i) in the case of an assignment, such
Bank shall (a) give to the Company and the
Administrative Agent prior notice thereof, and, in the
case of any assignment, the Company and the
Administrative Agent shall, except as set forth in the
last sentence of this Section 10.01(c) and in Section
10.01(d), have consented thereto (such consent not to
be unreasonably withheld) and (b) comply with
Section 10.01(f) hereof and thereupon, the assignee
"Purchasing Bank" shall have, to the extent of such
assignment (unless otherwise provided thereby), the
rights and benefits described in Section 10.01(f)
hereof, and (ii) in the case of a participation, except
as set forth below, (a) the participant shall not have
any rights under this Agreement or any Note or any
other document delivered in connection herewith (the
participant's rights against such Bank in respect of
such participation to be those set forth in the
agreement executed by such Bank in favor of the
participant relating thereto); provided that a
participation agreement may provide that a Bank will
not agree to any modification, amendment or waiver of
any provision in this Agreement described in clause
(i), (iii), or (iv) of Section 10.06 without the
consent of the participant and (b) all amounts payable
by the Borrower under Sections 2.12(e) and 2.12(i)
hereof shall be determined as if the Bank had not sold
such participation. Except with respect to interest
rate, principal amount of any Loan, fees, scheduled
dates for payment of principal or interest or fees,
scheduled termination of commitments and commitment
amounts, a Bank will not in any such participation
agreement restrict its ability to make any
modification, amendment or waiver to this Agreement
without the consent of the participant. Any Bank may
furnish any information concerning the Company in
possession of such Bank from time to time to Affiliates
of such Bank and to assignees and participants
(including prospective assignees and participants),
provided, however, that (i) except when such
information is furnished to an Affiliate, the
furnishing Bank shall give the Company prior notice of
any furnishing of non-public information (ii) the
recipient shall agree to the terms of this Section
10.01 hereof and (iii) the furnishing of such
information (and the nature, manner and extent thereof)
by any Bank to its Affiliates and such assignees and
participants shall be further governed by the relevant
agreement, assignment or participation agreement
relating to such arrangement, assignment or
participation, as the case may be. Notwithstanding
anything to the contrary in the foregoing, any Bank
may, without the consent of the Company or the
Administrative Agent, assign any of its rights and
interests in Loans hereunder to (x) a federal reserve
bank without the consent of the Company or (y) any
Affiliate of such Bank; provided that an Affiliate to
whom such disposition has been made shall not be
considered a "Bank" for purposes of Section 10.06 but
shall be considered a "Bank" for purposes of Sections
10.04 and 10.05.
(d) Notwithstanding the foregoing provisions of
this Section 10.01, each Bank may at any time, upon 30
days' prior written notice to the Administrative Agent
and the Company, sell, assign, transfer or negotiate
all or any part of its Loans, Notes or Commitment if,
but only if, concurrently therewith or prior thereto
(a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934)
of a majority of the outstanding shares of voting stock
of the Company pursuant to one or more transactions not
approved, in their capacities as directors, by at least
a majority of the individuals who served as directors
of the Company on the date one year prior to the date
of the first acquisition of voting stock leading to
such acquisition or (b) during any period of 12
consecutive months, commencing before or after the date
of this Agreement, individuals who at the beginning of
such 12 month period were directors of the Company
cease for any reason to constitute a majority of the
board of directors of the Company.
(e) Except pursuant to an assignment permitted by
this Agreement but only to the extent set forth in such
assignment, no Bank shall, as between each Borrower and
that Bank, be relieved of any of its obligations
hereunder as a result of any sale, transfer or
negotiation of, or granting of participations in, all
or any part of the Loans, the Notes or Commitment of
that Bank or other obligations owed to such Bank.
(f) Any Bank may at any time assign to one or more
banks or other financial institutions all, or a
proportionate part of all, of its rights and
obligations under this Agreement and the Notes,
provided that (i) the minimum amount of such assignment
shall be equivalent to (A) if the Purchasing Bank is
not a Bank hereunder, $20,000,000 or the aggregate
amount of the assigning Bank's Commitment, whichever is
less and (B) if the Purchasing Bank is a Bank
hereunder, $5,000,000 and (ii) after giving effect to
such assignment, the Commitment of the assigning Bank
is equivalent to not less than $10,000,000, unless such
assigning Bank shall have assigned all of its rights
and obligations under this Agreement and the Notes; and
provided further that any such assignment may, but need
not, include rights of the transferor Bank in respect
of outstanding Competitive Bid Loans. Any assignment
made pursuant to Section 10.01(c) hereof shall be made
pursuant to a Transfer Supplement, substantially in the
form of Exhibit F annexed hereto, executed by the
Purchasing Bank, the transferor Bank, the Company and
the Administrative Agent. Upon (i) such execution of
such Transfer Supplement, (ii) delivery of an executed
copy thereof to the Borrower, (iii) payment by such
Purchasing Bank to such transferor Bank of an amount
equal to the purchase price agreed between such
transferor Bank and such Purchasing Bank, and (iv)
payment by such Purchasing Bank or transferor Bank (as
they shall mutually agree) to the Administrative Agent
of a non-refundable fee of $3,000 to cover
administrative and other expenses which may be incurred
in connection with such assignment, such Purchasing
Bank shall for all purposes be a Bank party to this
Agreement and shall have the rights (including without
limitation the benefits of Sections 2.12 and 2.13) and
obligations of a Bank under this Agreement to the same
extent as if it were an original party hereto and
thereto with the pro rata Share of the applicable
Commitment set forth in such Transfer Supplement, and
no further consent or action by the Company, the Banks
or the Administrative Agent shall be required. Such
Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing
Bank and the resulting adjustment of pro rata Shares
arising from the purchase by such Purchasing Bank of
all or a portion of the rights and obligations of such
transferor Bank under this Agreement, the Loans and the
Notes. Upon the consummation of any transfer to a
Purchasing Bank pursuant to this paragraph (f), the
transferor Bank, the Administrative Agent and the
Company shall make appropriate arrangements so that, if
required, a replacement Note is issued to such
transferor Bank and a new Note or, as appropriate, a
replacement Note, issued to such Purchasing Bank, in
each case in principal amounts reflecting their pro
rata Shares or, as appropriate, their outstanding
Loans, as adjusted pursuant to such Transfer
Supplement.
Section 10.2. Expenses. Whether or not the
transactions contemplated hereby shall be consummated,
the Company agrees to promptly pay (i) all the actual
and reasonable out-of-pocket costs and expenses of the
Agents in connection with the negotiation, preparation
and execution of this Agreement, and the Notes;
(ii) the reasonable fees, expenses and disbursements of
Xxxxx, Xxxx & Xxxxxxxx, special counsel to the Agents,
in connection with the negotiation, preparation,
execution and administration of this Agreement, the
Notes, the Loans, and any amendments and waivers hereto
or thereto; and (iii) all reasonable costs and expenses
(including reasonable attorneys' fees, expenses and
disbursements, and costs of settlement) incurred by the
Banks in enforcing any obligations of or in collecting
any payments due from any Borrower hereunder or under
the Notes by reason of the occurrence of any Event of
Default or in connection with any refinancing or
restructuring of the credit arrangements provided under
this Agreement in the nature of a "work-out" or of any
insolvency or bankruptcy proceedings or otherwise.
Section 10.3. Indemnity. In addition to the
payment of expenses pursuant to Section 10.02 hereof,
whether or not the transactions contemplated hereby
shall be consummated, the Company agrees to indemnify,
pay and hold each Agent and each Bank and any holder of
any of the Notes and the officers, directors,
employees, agents, advisors and affiliates of each of
them (collectively called the "Indemnitees") harmless
from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation,
the reasonable fees, expenses and disbursements of
counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto), which may be
imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of
this Agreement, the Banks' agreement to make the Loans
or the use or intended use of the proceeds of any of
the Loans hereunder (the "indemnified liabilities");
provided that, the Company shall have no obligation to
any Indemnitee hereunder to the extent that such
indemnified liabilities arose from the gross negligence
or willful misconduct of that Indemnitee. To the
extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or
public policy or otherwise, the Company shall
contribute the maximum portion which it is permitted to
pay and satisfy under applicable law, to the payment
and satisfaction of all indemnified liabilities
incurred by the Indemnitees or any of them.
Section 10.4. Setoff. In addition to any rights
now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Bank and each
subsequent holder of any Note is hereby authorized by
each Borrower at any time and from time to time,
without notice to such Borrower, or to any other
Person, and without presentment, demand or protest, any
such being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general
or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured
or unmatured but not including trust accounts) and any
other Indebtedness at any time held or owing by that
Bank or that subsequent holder (including, without
limitation, any branches or agencies thereof, wherever
located) to or for the credit or the account of such
Borrower against and on account of the obligations and
liabilities of such Borrower to that Bank or that
subsequent holder under this Agreement, or the Notes
including, but not limited to, all claims of any nature
or description arising out of or connected with this
Agreement or the Notes or the Loans, irrespective of
whether or not (a) that Bank or that subsequent holder
shall have made any demand hereunder or (b) that Bank
or that subsequent holder shall have declared the
principal or the interest on the Loans and Notes, and
other amounts due hereunder, to be due and payable as
permitted by Section 7 and although said obligations
and liabilities, or any of them, may be contingent or
unmatured.
Section 10.5. Ratable Sharing. Subject to the
last sentence of this Section 10.05, each Bank and each
subsequent holder by acceptance of a Revolving Note or
a Syndicated Loan agree among themselves that (i) with
respect to all amounts received by them which are
applicable to the payment of principal of or interest
on the Syndicated Loans and Revolving Notes and amounts
payable in respect of the facility fees, equitable
adjustment will be made so that, in effect, all such
amounts will be shared among the Banks proportionately
to their respective pro rata Shares whether received by
voluntary payment, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross
action or by the enforcement of any or all of the
Revolving Notes and Syndicated Loans, (ii) if any of
them shall exercise any right of counterclaim, setoff,
banker's lien or similar right with respect to amounts
owed by any Borrower hereunder or under the Revolving
Notes or the Syndicated Loans, then the Bank or holder,
as the case may be, shall apportion the amount
recovered as a result of the exercise of such right in
accordance with each Bank's pro rata Share, and
(iii) if any of them shall thereby through the exercise
of any right of counterclaim, set off, banker's lien or
otherwise or as adequate protection of a deposit
treated as cash collateral under the Bankruptcy Code,
receive payment or reduction of a proportion of the
aggregate amount of principal and interest due with
respect to the Revolving Notes or Syndicated Loans held
by the Bank or holder, or any amount payable hereunder
which is greater than the proportion received by any
other holder of the Revolving Notes or Syndicated Loans
in respect of the aggregate amount of principal and
interest due with respect to the Revolving Notes or
Syndicated Loans held by it, or any amount payable
hereunder, then the Bank or that holder of the
Revolving Notes or Syndicated Loans receiving such
proportionately greater payments shall (y) notify each
other Bank and the Administrative Agent of such receipt
and (z) purchase participations (which it shall be
deemed to have done simultaneously upon the receipt of
such payment) in the Revolving Notes or Syndicated
Loans held by the other holders so that all such
recoveries of principal and interest with respect to
the Revolving Notes or Syndicated Loans shall be
proportionate to their pro rata Shares provided that,
if all or part of such proportionately greater payment
received by such purchasing holder is thereafter
recovered from such holder, those purchases shall be
rescinded and the purchase prices paid for such
participations shall be returned to that holder to the
extent of such recovery, but without interest. Each
Borrower expressly consents to the foregoing
arrangement and agrees that any holder of a
participation in any such Revolving Note or Syndicated
Loan so purchased and any other subsequent holder of a
participation in any Revolving Note or Syndicated Loan
otherwise acquired may exercise any and all rights of
banker's lien, set off or counterclaim with respect to
any and all moneys owing by such Borrower to that
holder as fully as if that holder were a holder of such
Revolving Note or Syndicated Loan in the amount of the
participation held by that holder. Notwithstanding the
foregoing, upon the occurrence and during the
continuance of a Potential Event of Default or an Event
of Default, the ratable sharing arrangements set forth
in this Section 10.05 shall be based on each Bank's pro
rata share of all Loans outstanding at such time,
rather than on each Bank's pro rata Share.
Section 10.6. Amendments and Waivers. No
amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes or consent
to any departure by any Borrower therefrom shall in any
event be effective without the written concurrence of
the Required Banks; provided that (a) any amendment,
modification, termination or waiver (i) of any
provision that increases the principal amount of the
Commitments or the Loans, changes a Bank's pro rata
Share or affects the definitions of "Required Banks"
and "Final Maturity Date," (ii) of any provision that
expressly requires the approval or concurrence of all
Banks, (iii) that decreases the interest rates borne by
the Syndicated Loans, or postpones the payment of
interest due on the Syndicated Loans, (iv) that
decreases the amount or changes the due date of any
amount payable in respect of the fees payable
hereunder, (v) that eliminates the Company's guarantee
set forth in Section 9 hereof or (vi) of any of the
provisions contained in Sections 2.12(b), 2.12(c) and
7.01 hereof and this Section 10.06 shall be effective
only if evidenced by a writing signed by or on behalf
of all Banks and (b) any waiver with respect to a
Competitive Bid Loan can be given only by the Bank
affected with respect thereto. No amendment,
modification, termination or waiver of any provision of
Section 8 hereof or any of the rights, duties,
indemnities or obligations of any Agent, as agent shall
be effective without the written concurrence of such
Agent. The Administrative Agent may, but shall have no
obligation to, with the concurrence of any Bank,
execute amendments, modifications, waivers or consents
on behalf of that Bank. Any waiver or consent shall be
effective only in the specific instance and for the
specific purpose for which it was given. No notice to
or demand on any Borrower in any case shall entitle
such Borrower to any further notice or demand in
similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected
in accordance with this Section 10.06 shall be binding
upon each holder of the Notes or Loans, at the time
outstanding, each future holder of the Notes or Loans
and, if signed by such Borrower, on the Borrower.
Section 10.7. Independence of Covenants. All
covenants hereunder shall be given independent effect
so that if a particular action or condition is not
permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise
within the limitation of, another covenant shall not
avoid the occurrence of an Event of Default or
Potential Event of Default if such action is taken or
condition exists.
Section 10.8. Notices. Unless otherwise provided
herein, any notice or other communication herein
required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed or
sent by United States mail and shall be deemed to have
been given when delivered in person, upon receipt of
telecopy or telex or four Business Days after
depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed;
provided that notices to the Administrative Agent shall
not be effective until received by such Agent. For the
purposes hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as
provided in this Section 10.08) shall be: (a) in the
case of the Company, at its address or facsimile number
set forth on the signature pages hereof, (b) in the
case of the Administrative Agent, at its address,
facsimile number or telex number in New York City set
forth on the signature pages hereof, (c) in the case of
any Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or
(d) in the case of any party, at such other address,
facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the
Administrative Agent and the Company.
Section 10.9. Survival of Warranties and Certain
Agreements.
(a) All agreements, representations and warranties
made herein shall survive the execution and delivery of
this Agreement, the making of the Loans hereunder and
the execution and delivery of the Notes.
(b) Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of the
Company or any other Borrower set forth in Sections
2.12(e) and 2.12(l), the agreements of the Company set
forth in Sections 10.02 and 10.03 and the agreements of
Banks set forth in Sections 8.02(c), 8.04, 10.04 and
10.05 shall survive the payment of the Loans, the Notes
and the termination of this Agreement.
Section 10.10. Failure or Indulgence Not Waiver;
Remedies Cumulative . No failure or delay on the part
of any Bank or of any holder of any Note or lender of
any Loan in the exercise of any power, right or
privilege hereunder or under the Notes or the Loans
shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or
further exercise thereof or of any other right, power
or privilege. All rights and remedies existing under
this Agreement or the Notes or the Loans are cumulative
to and not exclusive of any rights or remedies
otherwise available.
Section 10.11. Severability. In case any
provision in or obligation under this Agreement or any
Note or Loan shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or
obligations thereof, or of such provision or obligation
in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 10.12. Obligations Several; Independent
Nature of Banks' Rights. The obligation of each Bank
hereunder is several, and no Bank shall be responsible
for the obligation or commitment of any other Bank
hereunder. Nothing contained in this Agreement and no
action taken by the Banks pursuant hereto shall be
deemed to constitute the Banks to be a partnership, an
association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to
each Bank shall be a separate and independent debt, and
each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not
be necessary for any other Bank to be joined as an
additional party in any proceeding for such purpose.
Section 10.13. Headings. Section and subsection
headings in this Agreement are included herein for
convenience of reference only and shall not constitute
a part of this Agreement for any other purpose or be
given any substantive effect.
Section 10.14. Applicable Law, Consent To
Jurisdiction.
(a) THIS AGREEMENT, THE NOTES AND THE LOANS SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH BORROWER ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY, AND EACH BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
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 SUCH ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
Section 10.15. Successors and Assigns; Subsequent
Holders of Notes . This Agreement shall be binding
upon the parties hereto and their respective successors
and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of the
Banks. The terms and provisions of this Agreement
shall inure to the benefit of any assignee or
transferee of the Notes and Loans and in the event of
such transfer or assignment, the rights and privileges
herein conferred upon the Banks shall automatically
extend to and be vested in such transferee or assignee,
all subject to the terms and conditions hereof. The
Company's or any Borrower's rights or any interest
therein hereunder may not be assigned without the
written consent of all the Banks except pursuant to a
merger, consolidation or sale, lease or transfer of
assets permitted by Section 6.01 hereof. The Banks'
rights of assignment are limited by and subject to
Section 10.01 hereof. The Company may, in its sole
discretion, upon ten (10) days' prior written notice,
replace any of the Banks with one or more banks
provided that (i) the Bank being replaced has
concurrently therewith been paid in full all amounts
due to such Bank hereunder and under any of its Notes,
(ii) the full amount of the Commitments remains
unchanged and (iii) the percentages of the total
Commitments allocated to each other Bank (or any
successors thereto) remains unchanged unless the prior
written consent from such Bank has been obtained. Any
such Bank so replaced shall, upon written request of
the Company, execute and deliver such instruments and
agreements as are reasonably necessary to accomplish
the same.
Section 10.16. Counterparts; Effectiveness. This
Agreement and any amendments, waivers, consents or
supplements may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective
on such date (the "Effective Date") as a counterpart
hereof shall be executed by each of the parties hereto
and copies hereof shall be delivered to the Company and
the Co-Syndication Agents.
Section 10.17. Judgment Currency. If for the
purposes of obtaining judgment in any court it is
necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable
hereunder (the "Specified Currency") into another
currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the
Administrative Agent or each Bank, as the case may be,
could purchase the Specified Currency with such other
currency on the Business Day preceding that on which
final, nonappealable judgment is given. The
obligations of each Borrower in respect of any sum due
to the Administrative Agent or any of the Banks
hereunder shall, notwithstanding any judgment in a
currency other than the Specified Currency, be
discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such
Bank, as the case may be, of any sum adjudged to be so
due in such other currency the Administrative Agent or
any Bank, as the case may be, may in accordance with
normal, reasonable banking procedures purchase the
Specified Currency with such other currency. If the
amount of the Specified Currency so purchased is less
than the sum originally due to the Administrative Agent
or such Bank, in the Specified Currency, each Borrower
agrees, to the fullest extent that it may effectively
do so, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or
such Bank, as the case may be, against such loss.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
Company:
TEXTRON INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
Notice Address:
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone No.
Telecopy No.
with a copy to:
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General
Counsel
Administrative Agent:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
Title: Vice President
Co-Syndication Agents:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
CITICORP SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, III
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
Title: Vice President
Commitments
Administrative Agent
$73,333,333 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
Title: Vice President
Co-Syndication Agents (or an
Affiliate thereof)
$66,666,667 THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
$66,666,667 CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx, III
Title: Attorney-In-Fact
$66,666,667 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx Xxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
Title: Vice President
Senior Managing Agents
$66,666,667 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ X.X. Xxxx
Title: Managing Director
$66,666,667 SWISS BANK, STAMFORD BRANCH
By: /s/ Xxxx Xxxxx
Title: Director
Banking Finance
By: /s/ Xxxxxxx XxXxxxxx
Title: Associate Director
Loan Portfolio Support, US
Co-Agents
$40,000,000 BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Title: Director
$40,000,000 BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxxx Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxx
Title: Vice President
Corporate Banking Division
$40,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxxx XxXxxxxx
Title: Corporate Banking Officer
$40,000,000 FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
$40,000,000 MARINE MIDLAND BANK
By: /s/ Xxxx X. Xxxxx
Title: Vice President
$40,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxx X. Xxxxx
Title: Senior Vice President
$40,000,000 ROYAL BANK OF CANADA
By: /s/ X.X. Xxxxxx
Title: Manager
$40,000,000 SOCIETE GENERALE FINANCE
(IRELAND) LIMITED
By: /s/ Xxxxx Xxxxxx
Title: Account Executive
By: /s/ Thererese Xxxxxxx
Title: Account Manager
$40,000,000 THE BANK OF NEW YORK
By: /s/ Xxxxxxx X.X. Xxxxx
Title: Vice President
Participants
$23,333,333 BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
$23,333,333 BANQUE PARIBAS
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxxx
Title: Vice President
$23,333,333 BARCLAYS BANK PLC
By: /s/ Xxxx Xxxxxxxx
Title: Director
$23,333,333 CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ X.X. Xxxxxxxx
Title: Executive
Director/Authorized Signatory
$23,333,333 CREDIT SUISSE FIRST BOSTON CORP.
By: /s/ Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
$23,333,333 DEN DANSKE BANK
By: /s/ Xxxx X. X'Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
Title: Vice President
$23,333,333 FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President
$23,333,333 MELLON BANK, N.A.
By: /s/ R. Xxxx Xxxxxxxx
Title: Vice President
$23,333,333 SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
Title: Group Vice President
+
By: /s/ Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
$23,333,333 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A-1 to
Credit Agreement
TEXTRON INC.
PROMISSORY NOTE
New York, New York
April 1, 1998
FOR VALUE RECEIVED, the undersigned [NAME OF
BORROWER], a _____________ corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
______________ (the "Payee") for the account of its
Applicable Lending Office, on or before April 1, 2003,
the principal amount of each Syndicated Loan made by
the Lender to the Borrower pursuant to the Credit
Agreement referred to below .
The Borrower also promises to pay interest on the
unpaid principal amount hereof from the date hereof
until paid in full at the rates and at the times which
shall be determined in accordance with the provisions
of the Credit Agreement dated as of April 1, 1998 (such
Agreement, as amended, amended and restated,
supplemented or otherwise modified from time to time,
being the "Credit Agreement") among the Borrower, the
Banks listed therein, Xxxxxx Guaranty Trust Company of
New York, as Administrative Agent and The Chase
Manhattan Bank, Citicorp Securities, Inc. and Deutsche
Bank AG, New York Branch, as Co-Syndication Agents.
This Note is one of the Borrower's "Revolving
Notes" and is issued pursuant to and entitled to the
benefits of the Credit Agreement to which reference is
hereby made for a more complete statement of the terms
and conditions under which the Syndicated Loans
evidenced hereby were made and are to be repaid.
Capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement.
All payments of principal and interest in respect
of this Note shall be made in the currency in which the
Syndicated Loan is denominated in same day funds (or,
if the Syndicated Loan was made in an Alternative
Currency, in such funds as may be then customary for
the settlement of international transactions in such
Alternative Currency), in accordance with the terms of
the Credit Agreement. Until notified in writing of the
transfer of this Note, the Borrower and the Agent shall
be entitled to deem the Payee or such person who has
been so identified by the transferor in writing to the
Borrower and the Agent as the holder of this Note, as
the owner and holder of this Note. Each of the Payee
and any subsequent holder of this Note agrees, by its
acceptance hereof, that before disposing of this Note
or any part thereof it will make a notation on the
Schedule attached hereto of all principal payments
previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that
the failure to make a notation of any payment made on
this Note shall not limit or otherwise affect the
obligation of the Borrower hereunder with respect to
payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated
to be due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the
computation of the payment of interest on this Note;
provided, however, that in the event that the day on
which payment relating to a Eurocurrency Rate Loan is
due is not a Business Day but is a day of the month
after which no further Business Day occurs in such
month, then the due date thereof shall be the next
preceding Business Day.
This Note is subject to mandatory prepayment as
provided in Section 2.10(c) of the Credit Agreement and
prepayment at the option of the Borrower as provided in
Section 2.10(b) of the Credit Agreement.
Upon the occurrence of an Event of Default, the
unpaid balance of the principal amount of this Note,
together with all accrued but unpaid interest thereon,
may become, or may be declared to be (shall
automatically become and be declared to be, in the case
of certain Events of Default relating to bankruptcy
matters), due and payable in the manner, upon the
conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment
only in the manner provided in the Credit Agreement.
The Borrower promises to pay all costs and
expenses, including attorneys' fees, all as provided
in Section 10.02 of the Credit Agreement, incurred in
the collection and enforcement of this Note. The
Borrower hereby consents to renewals and extensions of
time at or after the maturity hereof, without notice,
and hereby waives diligence, presentment, protest,
demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
The Credit Agreement and this Note shall be
governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the Borrower has caused this
Note to be executed and delivered by its duly
authorized officer, as of the day and year and at the
place first above written.
TEXTRON INC.
By:
Name:
Title:
EXHIBIT
SYNDICATED LOANS AND PRINCIPAL PAYMENTS SCHEDULE
Amount of Outstanding
Type of Amount of Principal Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
EXHIBIT A-2 to
Credit Agreement
TEXTRON INC.
PROMISSORY NOTE
New York, New York
April 1, 1998
FOR VALUE RECEIVED, the undersigned [NAME OF
BORROWER], a _____________ corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
______________ (the "Payee") for the account of its
Applicable Lending Office, on or before April 1, 2003
(or such earlier date as may be agreed to between the
Borrower and the Payee in the applicable Notice of
Competitive Bid Borrowing), the unpaid principal amount
of each advance made by the Payee to the Borrower as a
Competitive Bid Loan under the Credit Agreement dated
as of April 1, 1998 (such Agreement, as amended and
restated, supplemented or otherwise modified from time
to time, being the "Credit Agreement") among the
Borrower, the Banks listed therein, Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent and
The Chase Manhattan Bank, Citicorp Securities, Inc. and
Deutsche Bank AG, New York Branch, as Co-Syndication
Agents.
The Borrower also promises to pay interest on the
unpaid principal amount hereof from the date hereof
until paid in full at the rates and at the times which
shall be determined in accordance with the terms of the
Credit Agreement and as agreed to between the Borrower
and the Payee in any Notice of Competitive Bid
Borrowing.
This Note is one of the Borrower's "Competitive
Bid Notes" and is issued pursuant to and entitled to
the benefits of the Credit Agreement and subject to the
terms and conditions agreed to between the Borrower and
the Payee in any Notice of Competitive Bid Borrowing,
to which reference is hereby made for a more complete
statement of the terms and conditions under which the
Competitive Bid Loans evidenced hereby were made and
are to be repaid. Capitalized terms used herein
without definition shall have the meanings set forth in
the Credit Agreement.
All payments of principal and interest in respect
of the Note shall be made in the currency in which the
Competitive Bid Loan is denominated in same day funds
(or if the Competitive Bid Loan was made in an
Alternative Currency, in such funds as may be then
customary for the settlement of international
transactions in such Alternative Currency) in
accordance with the Credit Agreement. Until notified
in writing of the transfer of this Note, the Borrower
and the Agent shall be entitled to deem the Payee or
such person who has been so identified by the
transferor in writing to the Borrower and the Agent as
the holder of this Note, as the owner and holder of
this Note. Each of the Payee and any subsequent holder
of this Note agrees, by its acceptance hereof, that
before disposing of this Note or any part thereof it
will make a notation on the Schedule attached thereto
of all principal payments previously made hereunder and
of the date to which interest hereon has been paid;
provided, however, that the failure to make a notation
of any payment made on this Note shall not limit or
otherwise affect the obligation of the Borrower
hereunder with respect to payments of principal of
interest on this Note.
Whenever any payment on this Note shall be stated
to be due on a day which is not a Business Day, such
payment shall be made on the next succeeding business
day and such extension of time shall be included in the
computation of the payment of interest on this Note.
Upon the occurrence and continuation of an Event
of Default, the unpaid balance of the principal amount
of this Note, together with all accrued but unpaid
interest thereon, may become due and payable.
The Borrower promises to pay all costs and
expenses, including attorneys' fees, all as provided in
Section 10.02 of the Credit Agreement, incurred in the
collection and enforcement of this Note. The Borrower
hereby consents to renewals and extensions of time at
or after the maturity hereof, without notice, and
hereby waives diligence, presentment, protest, demand
and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
The Credit Agreement and this Note shall be
governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the Borrower has caused this
Note to be executed and delivered by its duly
authorized officer, as of the day and year and at the
place first above written.
TEXTRON INC.
By:
Name:
Title:
EXHIBIT
COMPETITIVE BID LOANS AND PRINCIPAL PAYMENTS SCHEDULE
EXHIBIT B to
Credit Agreement
OPINION OF COUNSEL
FOR THE
BORROWER
[Letterhead of Textron Inc.]
[DATE]
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
The Banks Party to the Credit
Agreement Referenced Below
Re: Credit Agreement dated as of April 1, 1998
among Textron Corp., the Banks named therein,
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent and The Chase
Manhattan
Bank, Citicorp Securities, Inc. and Deutsche
Bank AG, New
York Branch, as Co-Syndication Agents
Ladies and Gentlemen:
I am the General Counsel of Textron Inc. a
Delaware corporation ("Company"). This opinion is
rendered to you pursuant to Section 3.01(b) of the
Credit Agreement dated as of April 1, 1998 (the "Credit
Agreement") among the Company, the Banks named as
parties thereto (the "Banks"), Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent ("Agent")
and The Chase Manhattan Bank, Citicorp Securities, Inc.
and Deutsche Bank AG, New York Branch, as Co-
Syndication Agents. The undersigned has prepared this
opinion and delivered it to the Banks for their benefit
at the request of the Company. Unless otherwise
defined herein, capitalized terms used herein have the
meanings set forth in the Credit Agreement.
In my capacity as General Counsel I have examined
originals, or copies identified to my satisfaction , of
such records, documents or other instruments as in my
judgement are necessary or appropriate to enable me to
render the opinions expressed below. I am familiar,
either directly or by inquiry of other officers or
employees of the Company and its Subsidiaries or
others, and/or through examination of the Company's and
its Subsidiaries' books and records, with the business,
affairs and records of the Company and its Subsidiaries
requisite to giving this opinion. Where and as this
opinion states conclusions based upon the absence of
facts, I have received in the course of my employment
no contrary information and would expect to receive
such information if an officer of the Company had
notice thereof.
I have been furnished with, and have obtained and
relied without independent investigation upon, such
certificates and assurances from public officials as I
have deemed necessary or appropriate. In my
examinations, I have assumed (a) the genuineness of all
signatures as to all parties other than the Borrowers,
the conformity to original documents of all documents
submitted to em as copies or drafts and the
authenticity of such originals of such latter
documents, (b) as to all Persons other than the
Borrowers, the due completion, execution,
acknowledgment as indicated thereon and delivery of
documents recited herein and therein and the validity
and enforceability against all parties thereto, and (c)
that each Person other than the Borrowers which is a
party to the Credit Agreement has full power, authority
and legal right, under its charter and other governing
documents, corporate legislation and the laws of its
jurisdiction of incorporation, to perform its
respective obligations under the Credit Agreement.
I have investigated such questions of law for the
purpose of rendering this opinion as I have deemed
necessary. I am opining herein only as to the United
States federal laws, the corporate laws of the State of
Delaware and the laws of the State of New York.
On the basis of the foregoing, and in reliance
thereon, and subject to the limitations, qualifications
and exceptions set forth herein, I am of the opinion
that:
1. Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of
its jurisdiction of incorporation. Each Borrower has
all requisite corporate power and authority to own and
operate its properties, to carry on its business as now
conducted and proposed to be conducted, to enter into
the Credit Agreement and to carry out the transactions
contemplated thereby, and to issued the Notes to be
issued by such Borrower.
2. Each Borrower is in good standing wherever
necessary to carry on its present business and
operations, except in jurisdictions in which the
failure to be in good standing has not had and will not
have a material adverse effect on the conduct of the
business of Company and its Subsidiaries, taken as a
whole.
3. The execution, delivery and performance of the
Credit Agreement and the issuance, delivery and payment
of the Notes and the borrowing of the Loans have been
duly authorized by all necessary corporate action by
each Borrower.
4. The execution, delivery and performance by each
Borrower of the Credit Agreement and the issuance,
delivery and performance of the Notes by each Borrower
or the borrowing of the Loans do not and will not (i)
violate any provision of law applicable to the Company
or any of its Subsidiaries, the Certificates of
Incorporation or By-laws of the Company or any of its
Subsidiaries, or, to my knowledge (after inquiry), any
order, judgment or decree of any court or other agency
of government binding on the Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of the
Company or any of its Subsidiaries of which I am aware
(after inquiry), (iii) result in or require the
creation or imposition of any material Lien upon any of
the material properties or assets of the Company or any
of its Subsidiaries under any such Contractual
Obligation or (iv) require any approval of stockholders
or any approval or consent of any Person under any
Contractual Obligation of the Company or any of its
Subsidiaries of which I am aware (after inquiry) other
than such approvals and consents which will be obtained
on or before the Effective Date.
5. The execution, delivery and performance by each
Borrower of the Credit Agreement and the issuance,
delivery and performance by each Borrower of the Notes
executed by such Borrower will not require any
registration with, consent or approval of, or notice
to, or other action to, with or by, any federal , state
or other Governmental Authority or regulatory body
other than any such registration, consent, approval,
notice or other action which has been duly made, given
or taken.
6. The Credit Agreement is and the Notes, when
executed and delivered will be, and, each Loan when
made will be, the legally valid and binding obligations
of the applicable Borrower, enforceable against such
Borrower in accordance with its respective terms,
except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or
by equitable principles relating to enforce ability.
7. Except as disclosed in the Financial Statements
delivered to the Banks pursuant to Section 4.03 of the
Credit Agreement, to my knowledge (after inquiry),
there is no action, suit, proceeding, governmental
investigation or arbitration (whether or not
purportedly on behalf of the Company or any of its
Subsidiaries) at law or in equity or before or by any
federal, state, municipal or other governmental
department, commission, board, bureau, agency, court or
instrumentality, domestic or foreign, pending or, to my
knowledge threatened against or affecting the Company
or any of its Subsidiaries or any property of the
Company or any of its Subsidiaries which is probable of
being successful and which would have Material Adverse
Effect.
8. Neither the Company nor any of its Subsidiaries
is subject to regulation under the Public Utility
Holding Company Act of 1935 or to any federal or state
statute or regulation limiting its ability to incur
Indebtedness for money borrowed as contemplated by the
Credit Agreement.
9. Neither the Company nor any of its Subsidiaries
is engaged principally, or as one of its important
activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
Very truly yours,
Exhibit C to
Credit Agreement
[Letterhead of
Xxxxx Xxxx & Xxxxxxxx]
[Date]
To the Banks and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the
Credit Agreement dated as of April 1, 1998 (the "Credit
Agreement") among Textron Inc., a Delaware corporation
(the "Company"), the Banks party thereto, Xxxxxx
Guaranty Trust Company of New York, as Administrative
Agent (the "Administrative Agent") and The Chase
Manhattan Bank, Citicorp Securities, Inc. and Deutsche
Bank AG, New York Branch, as Co-Syndication Agents (the
"Co-Syndication Agents" and together with the
Administrative Agent, the "Agents"), and have acted as
special counsel for the Agents for the purpose of
rendering this opinion pursuant to Section ? of the
Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such
documents, corporate records, certificates of public
officials and other instruments and have conducted such
other investigations of fact and law as we have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes are
within the Company's corporate powers and have been
duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Company and each Note issued
thereunder today constitutes a valid and binding
obligation of the Company, in each case enforceable in
accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of
equity.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United
States of America and the General Corporation Law of
the State of Delaware. In giving the foregoing opinion,
we express no opinion as to the effect (if any) of any
law of any jurisdiction (except the State of New York)
in which any Bank is located which limits the rate of
interest that such Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not
be relied upon by you for any other purpose or relied
upon by any other Person without our prior written
consent.
Very truly yours,
Exhibit D-1 to
Credit Agreement
[FORM OF NOTICE OF SYNDICATED BORROWING]
Pursuant to Section 2.01(b) of that certain Credit
Agreement dated as of April 1, 1998 among Textron Inc.,
a Delaware corporation (the "Company"), the Banks
listed therein (the "Banks"), Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent (the
"Agent") and The Chase Manhattan Bank, Citicorp
Securities, Inc. and Deutsche Bank AG, New York Branch,
as Co-Syndication Agents (such Agreement as amended to
the date hereof being the "Credit Agreement"), this
represents the undersigned Borrower's request to borrow
on __________, 19__ from the Banks in accordance with
each Bank's Pro Rata share __________ [specify
currency] as [Base Rate/Eurocurrency Rate] Loans. [The
initial Interest Period for such Loans is requested to
be a __________ period.] The proceeds of such Loans are
to be deposited in the Borrower's account designated
below. The Borrower represents and warrants to the
Banks and the Agent that, after giving effect to the
Borrowing requested hereby and the making of all loans
requested but not funded as of the proposed Funding
Date of the Borrowing requested hereby, the aggregate
principal amount of all Loans outstanding in Dollars is
$____________ and the aggregate principal amount of all
Loans outstanding in [specify for each Alternative
Currency in which Loans are outstanding] is __________.
Capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement.
Dated:
[NAME OF BORROWER]
By:
Name:
Title:
Account Designation
Name of Bank:
Account Number:
Exhibit D-2 to
Credit Agreement
[FORM OF NOTICE OF COMPETITIVE BID BORROWING]
[Name and Address of Bank]
Gentlemen:
The undersigned refers to the Credit Agreement,
dated as of April 1, 1998, among Textron Inc., the
Banks listed therein, Xxxxxx Guaranty Trust Company of
New York, as Administrative Agent and The Chase
Manhattan Bank, Citicorp Securities, Inc. and Deutsche
Bank AG, New York Branch, as Co-Syndication Agents
(such agreement as amended to the date hereof being the
"Credit Agreement") and hereby gives you notice
pursuant to Section 2.02(b) of the Credit Agreement
that the undersigned hereby requests a Competitive Bid
Loan under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Loan
is requested to be made:
(A) Date of Competitive Bid Borrowing
(B) Amount of Competitive Bid Loan
(C) Interest Period (Maturity Date)
(D) Currency of Competitive Bid Loan
(E) Account Designation:
Bank
Account Number
(F) Interest Payment Date(s)
(G) Type of Competitive Bid Loan
(Absolute Rate/LIBOR)
(H) Aggregate Principal Amount of
Loans Outstanding in:
Dollars
[specify for each Alternative
Currency in which Loans
are outstanding]
1(I)
____________
1Insert additional terms, if any.
The undersigned hereby confirms and represents, as
of the date hereof and as of the date of the
Competitive Bid Loan, that [2] have been satisfied.
Dated:
Very truly yours,
[Name of Borrower]
By:
Name:
Title:
__________
2Insert conditions to Borrowing as agreed between the Borrower and the Bank.
Exhibit D-3 to
Credit Agreement
[FORM OF NOTICE OF CONVERSION/CONTINUATION]
Pursuant to that certain Credit Agreement dated as
of April 1, 1998 (as amended to the date hereof, the
"Credit Agreement") among Textron Inc. (the "Company"),
the Banks listed therein, Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent and The Chase
Manhattan Bank, Citicorp Securities, Inc. and Deutsche
Bank AG, New York Branch, as Co-Syndication Agents,
this represents the undersigned Borrower's request [A:
to convert $_________ in principal amount of presently
outstanding Base Rate Loans with an Interest Payment
Date of __________, 19__ to Eurocurrency Rate Loans on
__________, 19__. The Interest Period for such
Eurocurrency Rate Loans commencing on such Interest
Payment Date is requested to be a __________ period.]
[B: to continue as Eurocurrency Rate Loans __________
in [specify currency] in principal amount of presently
outstanding [Eurocurrency Rate] Loans with an Interest
Payment Date of __________, 19__. The Interest Period
for such Eurocurrency Rate Loans commencing on such
Interest Payment Date is requested to be a __________
period.]1
The undersigned officer, to the best of his
knowledge, and the Borrower certify that no Event of
Default or Potential Event of Default has occurred and
is continuing under the Credit Agreement. Capitalized
terms used herein without definition have the meanings
set forth in the Credit Agreement.
Dated:
[Name of Borrower]
By:
Name:
Title:
Exhibit E to
Credit Agreement
TEXTRON INC.
Compliance Certificate
With reference to the provisions of Section 5.01
of the Credit Agreement (the "Agreement") dated as of
April 1, 1998, as amended, among Textron Inc. (the
"Company"), the Banks listed therein, Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent and
The Chase Manhattan Bank, Citicorp Securities, Inc. and
Deutsche Bank AG, New York Branch, as Co-Syndication
Agents, the undersigned, being Vice President and
Controller (Principal Accounting Officer) of the
Company, hereby certifies that:
(a) the consolidated balance sheet at [insert
date] and the related consolidated statements
of income and cash flows for the year then
ended which were included in the accompanying
Annual Report on Form 10-K/10-Q for the
[year/quarter] ended [insert date], present
fairly the consolidated financial position of
Textron Inc. at [insert date] and the
consolidated results of its operations and
its cash flows for the year then ended, in
conformity with generally accepted accounting
principles which have been applied on a
consistent basis during the period except as
noted in such Report;
(b) with respect to Section 6.03(a) of the
Agreement, the Company's Consolidated Net
Worth (as defined in the Agreement) was
greater than [insert amount] as at [insert
date] (see Schedule A attached hereto);
(c) with respect to Section 6.03(b) of the
Agreement, the Company's Interest Coverage
Ratio (as defined in the Agreement) was
greater than 1.5 to 1.0 as at [insert date]
(see calculation set forth on Schedule A
attached hereto):
(d) the undersigned has reviewed the terms of the
Agreement and has made, or caused to be made
under the undersigned's supervision, a review
in reasonable detail of the transactions and
condition of the Company and its consolidated
subsidiaries during the accounting period
covered by the above-referenced financial
statements and the undersigned has no
knowledge of the existence as at the date of
this certificate of any condition or event
which constitutes an Event of Default or a
Potential Event of Default (as such terms are
defined in the Agreement).
IN WITNESS WHEREOF, the undersigned has hereunto
set his hand this day of ,
.
Vice President and Controller
Schedule A
TEXTRON INC.
Financial Covenants
(in millions, except ratios)
[Insert Date]
Section 6.03(a) -
Consolidated Net Worth $
Less: Affiliate Amount
$
Minimum permitted:
Minimum permitted as of 1/3/98 $ 3,000.00
Add: Consolidated net income (loss)
(adjusted to 1/3/98 GAAP)
For the quarter ended [Insert Date]
If income, X 40%
If loss, X 0%
[Repeat for subsequent quarters]
$
Add: Equity issuances (excluding exercise
of employee stock options)
Minimum permitted as of [Insert Date]$ 0.0
Section 6.03(b) - Interest Coverage RatioFour fiscal quarter
period ended
[Insert Date]
Consolidated EBITDA $
Consolidated Interest Expense $
Consolidated EBITDA to Consolidated
Interest Expense
Minimum permitted 1.5 to 1.0
Exhibit F to
Credit Agreement
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of __________, 19__,
among [NAME OF BANK] (the "Transferor Bank") and each
bank listed as a Purchasing Bank on the signature pages
hereof (each, a "Purchasing Bank"), and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent (the
"Agent") for the Banks under the Credit Agreement
described below and as agreed to by Textron Inc., a
Delaware corporation (the "Company").
W I T N E S S E T H
WHEREAS, this Transfer Supplement is being
executed and delivered pursuant to Section 10.01(f) of
the Credit Agreement dated as of April 1, 1998, among
the Company, the Agent, the Banks listed therein and
The Chase Manhattan Bank, Citicorp Securities, Inc. and
Deutsche Bank AG, New York Branch, as Co-Syndication
Agents (as such agreement may be amended, amended and
restated, supplemented, or otherwise modified from time
to time, the "Credit Agreement"); capitalized terms
used and not otherwise defined herein being used herein
as therein defined);
WHEREAS, each Purchasing Bank (if it is not
already a Bank party to the Credit Agreement) wishes to
become a Bank party to the Credit Agreement; and
WHEREAS, the Transferor Bank is selling and
assigning to each Purchasing Bank certain rights,
obligations and commitments of the Transferor Bank
under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
2(a). Upon the execution and delivery of this
Transfer Supplement by each Purchasing Bank, the
Transferor Bank, the Agent and the Company, each such
Purchasing Bank shall be a Bank party to the Credit
Agreement for all purposes thereof.
(b). The Transferor Bank acknowledges receipt from
each Purchasing Bank of an amount equal to the purchase
price, as agreed between the Transferor Bank and such
Purchasing Bank, of the portion being purchased by such
Purchasing Bank (such Purchasing Bank's "Purchased Pro
Rata Share") of the outstanding principal amount of,
and accrued interest on, the Loans and all other
amounts owing to the Transferor Bank under the Credit
Agreement and/or the Notes to the extent shown on
Schedule I hereto. The Transferor Bank hereby
irrevocably sells, assigns and transfers to each
Purchasing Bank, without recourse, representation or
warranty, and each Purchasing Bank hereby irrevocably
purchases, takes and assumes from the Transferor Bank,
such Purchasing Bank's Purchased Pro Rata Share of the
Commitment of the Transferor Bank and the presently
outstanding Loans and other amounts owing to the
Transferor Bank under the Credit Agreement and/or the
Notes as shown on Schedule I, together with all the
corresponding rights and obligations of the Transferor
Bank in, to and under all instruments and documents
pertaining thereto.
(c). The Transferor Bank has made arrangements with
each Purchasing Bank with respect to the portion, if
any, to be paid by the Transferor Bank to such
Purchasing Bank of fees heretofore received by the
Transferor Bank pursuant to the Credit Agreement.
(d). Each Purchasing Bank or the Transferor Bank (as
they have mutually agreed) has paid to the Agent a non-
refundable fee of $3,000 (per Purchasing Bank) to cover
administrative and other expenses, as provided in
Section 10.01(f) of the Credit Agreement.
(e). From and after the date hereof, principal,
interest, fees, commissions and other amounts that
would otherwise be payable to or for the account of the
Transferor Bank pursuant to or in respect of the Credit
Agreement and/or the Notes transferred to each
Purchasing Bank hereunder shall, instead, be payable to
or for the account of the Transferor Bank and each of
the Purchasing Banks, as the case may be, in accordance
with their respective interests as reflected in this
Transfer Supplement, whether such amounts have accrued
prior to the date hereof or accrue subsequent to the
date hereof.
(f). Concurrently with the execution and delivery
hereof, the Company, the Transferor Bank and each
Purchasing Bank shall make appropriate arrangements so
that replacement Notes, as applicable, are issued to
the Transferor Bank, and new Notes or replacement
Notes, as appropriate, are issued to each Purchasing
Bank, in each case in principal amounts reflecting, in
accordance with the Credit Agreement, outstanding Loans
owing to them in which they participate and, as
appropriate, their Commitment (as adjusted pursuant to
this Transfer Supplement) as shown in Schedule I.
(g). Concurrently with the execution and delivery
hereof, the Agent will, at the expense of the
Transferor Bank, provide to each Purchasing Bank (if it
is not already a Bank party to the Credit Agreement)
conformed copies of all documents delivered to the
Agent on the Effective Date in satisfaction of the
conditions precedent set forth in the Credit Agreement.
(h). Each of the parties to this Transfer Supplement
agrees that at any time and form time to time upon the
written request of any other party, it will execute and
deliver such further documents and do such further acts
and things as such other party may reasonably request
in order to effect the purposes of this Transfer
Supplement.
(i). Schedule I hereto sets forth the revised
Commitment, amount of outstanding Loans and the Pro
Rata Shares of the Transferor Bank and each Purchasing
Bank as well as administrative information with respect
to each Purchasing Bank.
(j). THIS TRANSFER SUPPLEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused
this Transfer Supplement to be executed by their
respective duly authorized officers as of the date
first set forth above.
[NAME OF BANK], as Transferor
Bank
By:
Name:
Title:
[NAME OF PURCHASING BANK],
as Purchasing Bank
By:
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent
By:
Name:
Title:
Agreed to as of this __
day of ______, 19__
TEXTRON INC.
By:
Name:
Title:
SCHEDULE I
[Transferor Bank]
Amount of Commitment, Outstanding Loans and Pro Rata
share:
Prior to giving effect to transfer:
Amount of Commitment $
Amount of Outstanding Syndicated
Loans $
Amount of Outstanding Competitive
Bid Loans $
Pro Rata Share %
After giving effect to transfer:
Amount of Commitment $
Amount of Outstanding Syndicated
Loans $
Amount of Outstanding Competitive
Bid Loans $
Pro Rata Share %
[Purchasing Bank]
Offices:
Domestic Lending Office Notices
Address:
Attn:
Telephone:
Telecopy:
Eurocurrency Lending Office Notices
Address:
Attn:
Telephone:
Telecopy:
Commitment, Loans Transferred and Pro Rata Share:
Amount of Commitment $
Amount of Outstanding Loans $
Purchased Pro Rata Share %
Exhibit G to
Credit Agreement
LOAN ASSUMPTION AGREEMENT
Reference is hereby made to the Credit Agreement
dated as of April 1, 1998 (such Agreement as amended to
the date hereof and as it may be amended, amended and
restated, supplemented or otherwise modified from time
to time in accordance with the terms thereof being the
"Credit Agreement") among Textron Inc., the Banks
listed therein, Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent and The Chase Manhattan
Bank, Citicorp Securities, Inc. and Deutsche Bank AG,
New York Branch, as Co-Syndication Agents. The
undersigned desires to become a Borrower (as defined in
the Credit Agreement) under the Credit Agreement. In
consideration of the covenants and mutual promises
contained therein, the undersigned acknowledges the
terms of the Credit Agreement and agrees to assume the
Credit Agreement as a Subsidiary Borrower as if it were
originally a signatory thereto and to be bound thereby
and under the Notes (as defined in the Credit
Agreement) executed by it and under any Loans (as
defined in the Credit Agreement) incurred by it as if
it were an original Borrower thereunder.
[Insert Name of Subsidiary]
By:
Date:
Notice Address:
The undersigned hereby acknowledges the foregoing
and further acknowledges that the guarantee set forth
in Article 9 of the Credit Agreement is not affected by
the addition of the above signed Subsidiary as a
Borrower under the Credit Agreement.
TEXTRON INC.
By:
Date:
