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<PAGE>
Exhibit 10.2
EXECUTION COPY
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364-DAY REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of March 29, 2004
among
ITT INDUSTRIES,INC.
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK, as Administrative Agent
--------------------------------------------
J.P. MORGAN SECURITIES INC., as Sole Lead Arranger
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined
Terms..................................................... 1
SECTION 1.02. Terms
Generally................................................... 11
SECTION 1.03. Accounting Terms;
GAAP............................................ 11
ARTICLE II
The Credits
SECTION 2.01.
Commitments.......................................................
11
SECTION 2.02.
Loans.............................................................
12
SECTION 2.03. Standby Borrowing
Procedure....................................... 13
SECTION 2.04. Conversion and Continuation of Standby
Loans...................... 13
SECTION 2.05.
Fees..............................................................
14
SECTION 2.06. Repayment of Loans; Evidence of
Debt.............................. 15
SECTION 2.07. Interest on
Loans................................................. 16
SECTION 2.08. Default
Interest.................................................. 16
SECTION 2.09. Alternate Rate of
Interest........................................ 16
SECTION 2.10. Termination and, Reduction of
Commitments......................... 17
SECTION 2.1l.
Prepayment........................................................
17
SECTION 2.12. Reserve Requirements; Change in
Circumstances..................... 18
SECTION 2.13. Change in
Legality................................................ 19
SECTION 2.14.
Indemnity.........................................................
20
SECTION 2.15. Pro Rata
Treatment................................................ 20
SECTION 2.16. Sharing of
Setoffs................................................ 21
SECTION 2.17.
Payments..........................................................
21
SECTION 2.18.
Taxes.............................................................
21
SECTION 2.19. Duty to Mitigate; Assignment of Commitments Under
Certain
Circumstances..................................................
24
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers.............................................. 25
SECTION 3.02.
Authorization.....................................................
25
SECTION 3.03.
Enforceability....................................................
26
SECTION 3.04. Governmental
Approvals............................................ 26
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i
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SECTION 3.05. Financial
Statements.............................................. 26
SECTION 3.06. Litigation; Compliance with
Laws.................................. 26
SECTION 3.07. Federal Reserve
Regulations....................................... 27
SECTION 3.08. Investment Company Act; Public Utility Holding
Company Act........ 27
SECTION 3.09. Use of
Proceeds................................................... 27
SECTION 3.10. Full Disclosure; No Material
Misstatements........................ 27
SECTION 3.1l.
Taxes.............................................................
27
SECTION 3.12. Employee Pension Benefit
Plans.................................... 27
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Extensions of
Credit.......................................... 28
SECTION 4.02. Effective
Date.................................................... 28
SECTION 4.03. First Borrowing by Each Borrowing
Subsidiary...................... 29
ARTICLE V
Covenants
SECTION 5.01.
Existence.........................................................
29
SECTION 5.02. Business and
Properties........................................... 29
SECTION 5.03. Financial Statements, Reports,
etc................................ 30
SECTION 5.04.
Insurance.........................................................
31
SECTION 5.05. Obligations and
Taxes............................................. 31
SECTION 5.06. Litigation and Other
Notices...................................... 31
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections......... 31
SECTION 5.08. Use of
Proceeds................................................... 31
SECTION 5.09. Consolidations, Mergers, and Sales of
Assets...................... 32
SECTION 5.10. Limitations on
Liens.............................................. 32
SECTION 5.11. Limitations on Sale and Leaseback
Transactions.................... 34
SECTION 5.12. Consolidated EBITDA to Consolidated Interest
Expense.............. 35
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ARTICLE VI
Events of Default
ARTICLE VII
Guarantee
ARTICLE VIII
The Administrative Agent
ii
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ARTICLE IX
Miscellaneous
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SECTION 9.01.
Notices...........................................................
41
SECTION 9.02. Survival of
Agreement............................................. 42
SECTION 9.03. Binding
Effect.................................................... 42
SECTION 9.04. Successors and
Assigns............................................ 42
SECTION 9.05. Expenses;
Indemnity............................................... 45
SECTION 9.06. APPLICABLE
LAW.................................................... 45
SECTION 9.07. Waivers;
Amendment................................................ 45
SECTION 9.08. Entire
Agreement.................................................. 46
SECTION 9.09.
Severability......................................................
46
SECTION 9.10.
Counterparts......................................................
47
SECTION 9.1l.
Headings..........................................................
47
SECTION 9.12. Right of
Setoff................................................... 47
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF
PROCESS....................... 47
SECTION 9.14. WAIVER OF JURY
TRIAL.............................................. 48
SECTION 9.15. Addition of Borrowing
Subsidiaries................................ 48
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EXHIBITS AND SCHEDULES
Exhibit A Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for ITT Industries,
Inc.
Exhibit D Form of Borrowing Subsidiary Agreement
Schedule 2.01 Commitments
Schedule 5.10 Existing Liens
iii
<PAGE>
364-DAY REVOLVING CREDIT FACILITY AGREEMENT (as it may
be amended, supplemented or otherwise modified, the
"Agreement") dated as of March 29, 2004, among ITT
INDUSTRIES,
INC., an Indiana corporation (the "Company"), each Borrowing
Subsidiary party hereto, the lenders listed in Schedule 2.01
(together with their permitted assigns, the "Lenders"),
JPMORGAN CHASE BANK, a New York State banking organization,
as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
The Lenders have been requested to extend credit to the
Borrowers
(such term and each other capitalized term used but not
otherwise defined herein
having the meaning assigned to it in Article I) to enable them
to borrow on a
standby revolving credit basis on and after the date hereof and
at any time and
from time to time prior to the Maturity Date a principal amount
not in excess of
$400,000,000 at any time outstanding. The proceeds of such
borrowings are to be
used for general corporate purposes (including, without
limitation, commercial
paper backup). The Lenders are willing to extend credit on the
terms and subject
to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any ABR Standby Loan .
"ABR Standby Loan" shall mean any Standby Loan bearing interest
at a
rate determined by reference to the Alternate Base Rate in
accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such
term
in Section 2.05(b).
"Administrative Questionnaire"shall mean an administrative
questionnaire in a form supplied by the Administrative
Agent.
"Affiliate" shall mean, when used with respect to a
specified
person, another person that directly or indirectly controls or
is controlled by
or is under common control with the person specified.
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2
"Aggregate Credit Exposure" shall mean the aggregate amount of
the
Lenders' Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per
annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of
(a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof,
"Prime Rate"
shall mean the rate of interest per annum publicly announced
from time to time
by the Administrative Agent as its prime rate in effect at its
principal office
in New York City; each change in the Prime Rate shall be
effective on the date
such change is publicly announced as effective. "Federal Funds
Effective Rate"
shall mean, for any day, the weighted average of the rates on
overnight Federal
funds transactions with members of the Federal Reserve System
arranged by
Federal funds brokers, as released on the next succeeding
Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
released for any
day which is a Business Day, the arithmetic average (rounded
upwards to the next
1/100th of 1%), as determined by the Administrative Agent, of
the quotations for
the day of such transactions received by the Administrative
Agent from three
Federal funds brokers of recognized standing selected by it. If
for any reason
the Administrative Agent shall have determined (which
determination shall be
conclusive absent manifest error) that it is unable to ascertain
the Federal
Funds Effective Rate for any reason, including the inability or
failure of the
Administrative Agent to obtain sufficient quotations in
accordance with the
terms thereof, the Alternate Base Rate shall be determined
without regard to
clause (b) of the first sentence of this definition until the
circumstances
giving rise to such inability no longer exist. Any change in the
Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall
be effective on the effective date of such change in the Prime
Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect
to
Eurocurrency Loans, a rate per annum equal to 0.40%.
"Applicable Share" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's
Commitment. If
the Commitments shall be terminated pursuant to Article VI, the
Applicable
Shares of the Lenders shall, subject only to assignments
pursuant to Section
9.04, be based upon the Commitments in effect immediately prior
to such
termination.
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee in the form of Exhibit
B.
"Available Commitment" shall mean, as to any Lender at any time,
an
amount equal to such Lender's Commitment at such time.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States.
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3
"Board of Directors" shall mean the Board of Directors of a
Borrower
or any duly authorized committee thereof.
"Borrower" shall mean the Company or any Borrowing
Subsidiary.
"Borrowing" shall mean a group of Loans of a single Type made by
the
Lenders on a single date and as to which a single Interest
Period is in effect.
"Borrowing Date" shall mean any date on which a Borrowing is
made
hereunder.
"Borrowing Subsidiary" shall mean any Subsidiary which shall
have
executed and delivered to the Administrative Agent for
distribution to each
Lender a Borrowing Subsidiary Agreement.
"Borrowing Subsidiary Agreement" shall mean an agreement, in
the
form of Exhibit D hereto, duly executed by the Company and a
Subsidiary.
"Business Day" shall mean any day (other than a day which is
a
Saturday, Sunday or legal holiday in the State of New York) on
which banks are
open for business in New York City; provided, however, that,
when used in
connection with a Eurocurrency Loan, the term "Business Day"
shall also exclude
any day on which banks are not open for dealings in deposits in
Dollars in the
London interbank market.
"Capitalized Lease-Back Obligation" shall mean with respect to
a
Principal Property, at any date as of which the same is to be
determined, the
total net rental obligations of the Company or a Restricted
Subsidiary under a
lease of such Principal Property, entered into as part of an
arrangement to
which the provisions of Section 5.11 are applicable (or would
have been
applicable had such Restricted Subsidiary been a Restricted
Subsidiary at the
time it entered into such lease), discounted to the date of
computation at the
rate of interest per annum implicit in the lease (determined in
accordance with
GAAP). The amount of the net rental obligation for any calendar
year under any
lease shall be the sum of the rental and other payments required
to be paid in
such calendar year by the lessee thereunder, not including,
however, any amounts
required to be paid by such lessee (whether or not therein
designated as rental
or additional rental) on account of maintenance and repairs,
insurance, taxes,
assessments, water rates and similar charges.
A "Change in Control" shall be deemed to have occurred if (a)
any
person or group of persons shall have acquired beneficial
ownership of more than
30% of the outstanding Voting Shares of the Company (within the
meaning of
Section 13(d) or 14(d) of the Exchange Act and the applicable
rules and
regulations thereunder), or (b) during any period of 12
consecutive months,
commencing after the Effective Date, individuals who on the
first day of such
period were directors of the Company (together with any
replacement or
additional directors who were nominated or elected by a majority
of directors
then in office) cease to constitute a majority of the Board of
Directors of the
Company.
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4
"Code" shall mean the Internal Revenue Code of 1986, as the same
may
be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment
of such Lender hereunder as set forth as of the Effective Date
in Schedule 2.01
under the heading "Commitment" or in an Assignment and
Acceptance delivered by
such Lender under Section 9.04 as such Lender's Commitment may
be permanently
terminated or reduced from time to time pursuant to Section 2.10
or pursuant to
one or more assignments under Section 9.04. The Commitment of
each Lender shall
automatically and permanently terminate on the Maturity Date if
not terminated
earlier pursuant to the terms hereof.
"Consolidated EBITDA" shall mean, for any period, (a)
Consolidated
Net Income for such period, plus (b) provisions for taxes based
on income during
such period, plus (c) Consolidated Interest Expense for such
period, plus (d)
total depreciation expense for such period, plus (e) total
amortization expense
for such period, plus (f) restructuring charges recorded during
such period
minus (g) cash expenditures during such period that are applied
against
restructuring charges recorded during such period or any prior
period, all of
the foregoing as determined on a consolidated basis for the
Company and the
Subsidiaries in accordance with GAAP; provided that there shall
be excluded from
such calculation the net gains or losses associated with the
sale of any asset
not in the ordinary course of business.
"Consolidated Interest Expense" shall mean, for any period,
the
gross interest expense of the Company and the Subsidiaries for
such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, net income
or
loss of the Company and the Subsidiaries for such period
determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean the total of
all
assets appearing on a consolidated balance sheet of the Company
and its
Restricted Subsidiaries, prepared in accordance with GAAP (and
as of a date not
more than 90 days prior to the date as of which Consolidated Net
Tangible Assets
are to be determined), less the sum of the following items as
shown on said
consolidated balance sheet:
(i) the book amount of all segregated intangible assets,
including
such items as good will, trademarks, trademark rights, trade
names, trade
name rights, copyrights, patents, patent rights and licenses
and
unamortized debt discount and expense less unamortized debt
premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other
than
Preferred Stock) and surplus of Restricted Subsidiaries of the
Company;
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5
(v) the investment of the Company and its Restricted
Subsidiaries in
any Unrestricted Subsidiary of the Company;
(vi) the total indebtedness of the Company and its
Restricted
Subsidiaries incurred in any manner to finance or recover the
cost to the
Company or any Restricted Subsidiary of any physical property,
real or
personal, which prior to or simultaneously with the creation of
such
indebtedness shall have been leased by the Company or a
Restricted
Subsidiary to the United States of America or a department or
agency
thereof at an aggregate rental, payable during that portion of
the initial
term of such lease (without giving effect to any options of
renewal or
extension) which shall be unexpired at the date of the creation
of such
indebtedness, sufficient (taken together with any amounts
required to be
paid by the lessee to the lessor upon any termination of such
lease) to
pay in full at the stated maturity date or dates thereof the
principal of
and the interest on such indebtedness;
(vii) deferred income and deferred liabilities; and
(viii) other items deductible under GAAP.
"Credit Exposure" shall mean, with respect to any Lender at
any
time, the aggregate principal amount at such time of all
outstanding Loans of
such Lender.
"Default" shall mean any event or condition which upon notice,
lapse
of time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States
of
America.
"Effective Date" shall mean the first date on or after March
29,
2004, on which the conditions set forth in Section 4.02 are
satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the Company, is treated as a
single employer
under Section 414(b) or (c) of the Code, or, solely for purposes
of Section 302
of ERISA and Section 412 of the Code, is treated as a single
employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations issued thereunder, with
respect to a
Plan; (b) the adoption of any amendment to a Plan that would
require the
provision of security pursuant to Section 401(a)(29) of the Code
or Section 307
of ERISA; (c) the existence with respect to any Plan of an
"accumulated funding
deficiency" (as defined in Section 412 of the Code or Section
302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d)
of the Code or
Section 303(d) of ERISA of an application for a waiver of the
minimum funding
standard with respect to any Plan; (e) the incurrence of
<PAGE>
6
any liability under Title IV of ERISA with respect to the
termination of any
Plan or the withdrawal or partial withdrawal of the Company or
any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt
by the Company
or any ERISA Affiliate from the PBGC or a plan administrator of
any notice
relating to the intention to terminate any Plan or Plans or to
appoint a
trustee to administer any Plan; (g) the receipt by the Company
or any ERISA
Affiliate of any notice that Withdrawal Liability is being
imposed or a
determination that a Multiemployer Plan is, or is expected to
be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; and
(h) the
occurrence of a "prohibited transaction" with respect to which
the Company or
any of its Subsidiaries is a "disqualified person" (within the
meaning of
Section 4975) of the Code, or with respect t o which the Company
or any such
Subsidiary could otherwise be liable.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Standby
Loan.
"Eurocurrency Standby Loan" shall mean any Standby Loan
bearing
interest at a rate determined by reference to the LIBO Rate in
accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term
in
Article VI.
"Exchange Act" shall mean the Securities Exchange Act of
1934,as
amended.
"Facility Fee" shall have the meaning assigned to such term
in
Section 2.05(a).
"Fair Value", when used with respect to property, shall mean
the
fair value as determined in good faith by the board of directors
of the Company.
"Fees" shall mean the Facility Fee,the Utilization Fee and
the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer,
associate or
assistant treasurer or director of treasury services of such
corporation.
"GAAP" shall mean generally accepted accounting principles,
applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or
foreign court or governmental agency, authority, instrumentality
or regulatory
body.
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7
"Guaranteed Obligations" shall mean the principal of and
interest on
the Loans made to, and all other obligations, monetary or
otherwise of, the
Borrowing Subsidiaries under any Loan Document.
"Indebtedness" of any person shall mean all indebtedness
representing money borrowed or the deferred purchase price of
property (other
than trade accounts payable) or any capitalized lease
obligation, which in any
case is created, assumed, incurred or guaranteed in any manner
by such
corporation or for which such corporation is responsible or
liable (whether by
agreement to purchase indebtedness of, or to supply funds to or
invest in,
others or otherwise).
"Interest Payment Date" shall mean (a) with respect to any Loan,
the
last day of each Interest Period applicable thereto and (b) with
respect to a
Eurocurrency Loan with an Interest Period of more than three
months' duration,
each day that would have been an Interest Payment Date for such
Loan had
successive Interest Periods of three months' duration, been
applicable to such
Loan and, in addition, the date of any prepayment of each Loan
or conversion of
such Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency
Borrowing,
the period commencing on the date of such Borrowing or on the
last day of the
immediately preceding Interest Period applicable to such
Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if
there is no
numerically corresponding day, on the last day) in the calendar
month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect and (b)
as to any ABR
Borrowing, the period commencing on the date of such Borrowing
or on the last
day of the immediately preceding Interest Period applicable to
such Borrowing,
as the case may be, and ending on the earliest of (i) the next
succeeding March
31, June 30, September 30 or December 31, (ii) the Maturity
Date, and (iii) the
date such Borrowing is converted to a Borrowing of a different
Type in
accordance with Section 2.04 or repaid or prepaid in accordance
with Section
2.06 or Section 2.11; provided, however, that if any Interest
Period would end
on a day other than a Business Day, such Interest Period shall
be extended to
the next succeeding Business Day unless, in the case of
Eurocurrency Loans only,
such next succeeding Business Day would fall in the next
calendar month, in
which case such Interest Period shall end on the next preceding
Business Day.
Interest shall accrue from and including the first day of an
Interest Period to
but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing
for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service
(or on any successor or substitute page of such Service, or any
successor to or
substitute for such Service, providing rate quotations
comparable to those
currently provided on such page of such Service, as determined
by the
Administrative Agent from time to time for purposes of providing
quotations of
interest rates applicable to dollar deposits in the London
interbank market) at
approximately 11:00 a.m., London time, two Business Days prior
to the
commencement of such Interest Period, as the rate for dollar
deposits with a
maturity comparable to such Interest Period. In the event that
such rate is not
available at such time for any reason, then the "LIBO Rate" with
respect to such
Eurocurrency Borrowing for such Interest Period shall be the
rate at which
dollar deposits of
<PAGE>
8
$5,000,000 and for a maturity comparable to such Interest Period
are offered by
the principal London office of the Administrative Agent in
immediately available
funds in the London interbank market at approximately 11:00
a.m., London time,
two Business Days prior to the commencement of such Interest
Period.
"Lien" shall mean, with respect to any property or asset,
any
mortgage, deed of trust, lien, pledge, security interest, charge
or other
encumbrance on, of, or in such property or asset.
"Loan" shall mean a Standby Loan, whether made as a
Eurocurrency
Loan or an ABR Loan, as permitted hereby.
"Loan Documents" shall mean this Agreement, the Borrowing
Subsidiary
Agreements, and promissory notes, if any, issued pursuant to
Section 9.04(i).
"Margin Regulations" shall mean Regulations T, U and X of the
Board
as from time to time in effect, and all official rulings and
interpretations
thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse effect
on
the business, assets, operations or condition, financial or
otherwise, of the
Company and Subsidiaries taken as a whole.
"Maturity Date" shall mean March 28, 2005.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA to which the Company or any ERISA
Affiliate (other
than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make
contributions, or
has within any of the preceding five plan years made or accrued
an obligation to
make contributions.
"Net Proceeds" means, with respect to any sale of debt or
equity
securities, (a) the aggregate amount of cash proceeds received
by any Borrower
or any Restricted Subsidiary of any Borrower from such sale
minus (b) all fees
and expenses, including customary brokerage commissions, legal
and investment
banking fees and other similar commissions, charges or fees,
incurred in
connection with such sale.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred
to and defined in ERISA.
"person" shall mean any natural person, corporation, limited
liability company, business trust, joint venture, association,
company,
partnership or government, or any agency or political
subdivision thereof.
<PAGE>
9
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which
any Borrower or
any ERISA Affiliate is (or, if such plans were terminated, would
under Section
4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of
ERISA.
"Preferred Stock" shall mean any capital stock entitled by its
terms
to a preference (a) as to dividends or (b) upon a distribution
of assets.
"Principal Property" shall mean any single manufacturing or
processing facility owned by the Company or any Restricted
Subsidiary having a
gross book value in excess of the greater of (i) 5% of
Consolidated Net Tangible
Assets and (ii) $40,000,000, except any such facility or portion
thereof which
the board of directors of the Company by resolution declares is
not of material
importance to the total business conducted by the Company and
its Restricted
Subsidiaries as an entirety.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined
in
Section 4043 of ERISA or the regulations issued thereunder with
respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is
considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing more than 50% of the Total Commitment
or, for purposes
of acceleration pursuant to clause (ii) of Article VI, Lenders
holding Loans
representing more than 50% of the aggregate principal amount of
the Loans
outstanding.
"Responsible Officer" of any corporation shall mean any
executive
officer or Financial Officer of such corporation and any other
officer or
similar official thereof responsible for the administration of
the obligations
of such corporation in respect of this Agreement.
"Restricted Subsidiary" shall mean any Subsidiary other than
an
Unrestricted Subsidiary.
"SEC" shall mean the Securities and Exchange Commission.
"Standby Borrowing" shall mean a Borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant
to
Section 2.03 in the form of Exhibit A.
<PAGE>
10
"Standby Credit Exposure" shall mean, with respect to any Lender
at
any time, the sum of the aggregate principal amount at such time
of all
outstanding Standby Loans of such Lender.
"Standby Loans" shall mean the revolving loans made pursuant
to
Section 2.03(a). Each Standby Loan shall be in Dollars and shall
be a
Eurocurrency Standby Loan or an ABR Loan.
"subsidiary" shall mean, with respect to any person (the
"parent"),
any corporation, association or other business entity of which
securities or
other ownership interests representing more than 50% of the
ordinary voting
power are, at the time as of which any determination is being
made, owned or
controlled by the parent or one or more subsidiaries of the
parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the Company.
"Total Commitment" shall mean, at any time, the aggregate amount
of
Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term
in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer
to the Rate by reference to which interest on such Loan or on
the Loans
comprising such Borrowing is determined. For purposes hereof,
"Rate" shall
include the LIBO Rate and the Alternate Base Rate.
"Unrestricted Subsidiary" shall mean (a) any Subsidiary which
has
been designated an Unrestricted Subsidiary by resolution of the
board of
directors of the Company (which resolution has been communicated
in a notice
delivered by the Company to the Administrative Agent for
distribution to the
Lenders) as an Unrestricted Subsidiary, other than any such
Subsidiary as to
which such a designation has been rescinded by resolution of
said board of
directors and not thereafter, or after some subsequent such
rescission, restored
by resolution of said board, or (b) any Subsidiary 50% or less
of the Voting
Shares of which is owned directly by the Company and/or one or
more Restricted
Subsidiaries. A Subsidiary may not be designated as (or
otherwise permitted to
become) an Unrestricted Subsidiary unless, immediately after
such Subsidiary
becomes an Unrestricted Subsidiary, such Subsidiary would not
own any capital
stock of, or hold any indebtedness of, any Restricted
Subsidiary. A designation
as an Unrestricted Subsidiary may not be rescinded (or an
Unrestricted
Subsidiary otherwise permitted to become a Restricted
Subsidiary) unless such
Subsidiary (i) is not a party to any lease which it would have
been prohibited
by this Agreement from entering into had it been a Restricted
Subsidiary at the
time it entered into such lease, unless (x) such Subsidiary had
not been a
Restricted Subsidiary prior to its entering into such lease, or
(y) the property
subject to such lease shall be owned by the Company and/or one
or more
Subsidiaries, or (z) such Subsidiary would not be prohibited by
this Agreement
from entering into such lease immediately after it becomes a
Restricted
Subsidiary, and
<PAGE>
11
(ii) does not have outstanding upon any of its property any
mortgage, pledge or
other lien which it would be prohibited by this Agreement from
creating,
suffering to be created, or assuming, immediately after it
becomes a Restricted
Subsidiary.
"Utilization Fee" shall have the meaning set forth in
Section
2.05(c).
"Voting Shares" shall mean, as to a particular corporation or
other
person, outstanding shares of stock or other equity interests of
any class of
such person entitled to vote in the election of directors, or
otherwise to
participate in the direction of the management and policies, of
such person,
excluding shares or interests entitled so to vote or participate
only upon the
happening of some contingency.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall
apply equally to both the singular and plural forms of the terms
defined.
Whenever the context may require, any pronoun shall include the
corresponding
masculine, feminine and neuter forms. The words "include",
"includes" and
"including" shall be deemed to be followed by the phrase
"without limitation".
All references herein to Articles, Sections, Exhibits and
Schedules shall be
deemed references to Articles and Sections of, and Exhibits and
Schedules to,
this Agreement unless the context shall otherwise require.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly
provided herein, all terms of an accounting or financial nature
shall be
construed in accordance with GAAP, as in effect from time to
time; provided,
however, that for purposes of determining compliance with any
covenant set forth
in Article V, such terms shall be construed in accordance with
GAAP as in effect
on the date hereof applied on a basis consistent with the
application used in
preparing the Company's audited financial statements referred to
in Section
3.05; provided that, if the Borrower notifies the Administrative
Agent that the
Borrower requests an amendment to any provision hereof to
eliminate the effect
of any change occurring after the date hereof in GAAP or in the
application
thereof on the operation of such provision (or if the
Administrative Agent
notifies the Borrower that the Required Lenders request an
amendment to any
provision hereof for such purpose), regardless of whether any
such notice is
given before or after such change in GAAP or in the application
thereof, then
such provision shall be interpreted on the basis of GAAP as in
effect and
applied immediately before such change shall have become
effective until such
notice shall have been withdrawn or such provision amended in
accordance
herewith; provided further that GAAP as used herein shall be
applied as in
effect immediately prior to FAS 133.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions
and relying upon the representations and warranties herein set
forth, each
Lender agrees, severally and not jointly, to make Standby Loans
to the
Borrowers, at any time and from time to time on and after the
date hereof and
until the earlier of the Maturity Date and the termination of
the Commitment of
such Lender.
<PAGE>
12
(b) Notwithstanding anything to the contrary contained in
this
Agreement, in no event may Standby Loans be borrowed under this
Article II if,
after giving effect thereto (and to any concurrent repayment or
prepayment of
Loans), (i) the aggregate Standby Credit Exposures would exceed
the Total
Commitment then in effect or (ii) the Standby Credit Exposure of
any Lender
would exceed such Lender's Commitment.
Within the foregoing limits, the Borrowers may borrow, pay or
prepay
and reborrow Standby Loans hereunder, on and after the Effective
Date and prior
to the Maturity Date, subject to the terms, conditions and
limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part
of
a Borrowing consisting of Standby Loans made by the Lenders
ratably in
accordance with their respective Available Commitments;
provided, however, that
the failure of any Lender to make any Standby Loan shall not in
itself relieve
any other Lender of its obligation to lend hereunder (it being
understood,
however, that no Lender shall be responsible for the failure of
any other Lender
to make any Loan required to be made by such other Lender). The
Loans comprising
any Borrowing shall be in an aggregate principal amount which is
an integral
multiple of $5,000,000 and not less than $20,000,000 (or an
aggregate principal
amount equal to the remaining balance of the Available
Commitments). All Standby
Loans made pursuant to this Article II shall be denominated in
Dollars.
(b) Each Standby Borrowing shall be comprised entirely of
Eurocurrency Standby Loans or ABR Loans, as the Borrower may
request pursuant to
Section 2.03. Each Lender may at its option make any
Eurocurrency Loan by
causing any domestic or foreign branch, agency or Affiliate of
such Lender to
make such Loan; provided that any exercise of such option shall
not affect the
obligation of the Borrower to repay such Loan in accordance with
the terms of
this Agreement. Borrowings of more than one Type may be
outstanding at the same
time. For purposes of the foregoing, Loans having different
Interest Periods,
regardless of whether they commence on the same date, shall be
considered
separate Loans.
(c) Subject to Section 2.04, each Lender shall make each Loan to
be
made by it hereunder on the proposed date thereof by wire
transfer of
immediately available funds to the Administrative Agent in New
York, New York,
not later than 12:00 noon, New York City time, and the
Administrative Agent
shall by 2:00 p.m., New York City time, credit the amounts so
received to the
account or accounts specified from time to time in one or more
notices delivered
by the Company to the Administrative Agent or, if a Borrowing
shall not occur on
such date because any condition precedent herein specified shall
not have been
met, forthwith return the amounts so received to the respective
Lenders. Standby
Loans shall be made by the Lenders pro rata in accordance with
Section 2.15.
Unless the Administrative Agent shall have received notice from
a Lender prior
to the date (or, in the case of ABR Borrowings, on the date) of
any Borrowing
that such Lender will not make available to the Administrative
Agent such
Lender's portion of such Borrowing, the Administrative Agent may
assume that
such Lender has made such portion available to the
Administrative Agent on the
date of such Borrowing in accordance with this paragraph (c) and
the
Administrative Agent may, in
<PAGE>
13
reliance upon such assumption, make available to the Borrower on
such date a
corresponding amount in the required currency. If and to the
extent that such
Lender shall not have made such portion available to the
Administrative Agent,
such Lender and the Borrower severally agree to repay to the
Administrative
Agent forthwith on demand such corresponding amount together
with interest
thereon in such currency, for each day from the date such amount
is made
available to the Borrower until the date such amount is repaid
to the
Administrative Agent at (i) in the case of the Borrower, the
interest rate
applicable at the time to the Loans comprising such Borrowing
and (ii) in the
case of such Lender, a rate determined by the Administrative
Agent to represent
its cost of overnight funds. If such Lender shall repay to the
Administrative
Agent such corresponding amount, such amount shall constitute
such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
SECTION 2.03. Standby Borrowing Procedure. In order to request
a
Standby Borrowing, a Borrower shall hand deliver or telecopy to
the
Administrative Agent a duly completed Standby Borrowing Request
in the form of
Exhibit A (i) in the case of a Eurocurrency Standby Loan, not
later than 10:30
a.m., New York City time (or, if the Standby Borrowing request
is delivered or
telecopied to the Administrative Agent in London, 9:30 a.m.,
London time),
three Business Days before such Borrowing, and (ii) in the case
of an ABR
Borrowing, not later than 10:30 a.m., New York City time, on the
day of such
Borrowing. Such notice shall be irrevocable and shall in each
case specify (A)
whether the Borrowing then being requested is to be a
Eurocurrency Standby Loan
or an ABR Borrowing; (B) the date of such Standby Borrowing
(which shall be a
Business Day) and the amount thereof; and (C) if such Borrowing
is to be a
Eurocurrency Standby Loan, the Interest Period with respect
thereto, which shall
not end after the Maturity Date. If no election as to the Type
of Standby
Borrowing is specified in any such notice, then the requested
Standby Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to
any
Eurocurrency Standby Loan is specified in any such notice, then
the Borrower
shall be deemed to have selected an Interest Period of one
month's duration.
Notwithstanding any other provision of this Agreement to the
contrary, no
Standby Borrowing shall be requested if the Interest Period with
respect thereto
would end after the Maturity Date. The Administrative Agent
shall promptly
advise each of the Lenders of any notice given pursuant to this
Section 2.03 and
of each Lender's portion of the requested Borrowing.
SECTION 2.04. Conversion and Continuation of Standby Loans.
Each
Borrower shall have the right at any time upon prior irrevocable
notice to the
Administrative Agent (i) not later than 10:30 a.m., New York
City time, on the
day of the conversion, to convert all or any part of any
Eurocurrency Standby
Loan into an ABR Standby Loan, and (ii) not later than 10:30
a.m., New York City
time, three Business Days prior to conversion or continuation,
to convert any
ABR Standby Loan into a Eurocurrency Standby Loan or to continue
any
Eurocurrency Standby Loan as a Eurocurrency Standby Loan for an
additional
Interest Period, subject in each case to the following:
(a) if less than all the outstanding principal amount of any
Standby
Borrowing shall be converted or continued, the aggregate
principal amount
of the
<PAGE>
14
Standby Borrowing converted or continued shall be an integral
multiple of
$5,000,000 and not less than $20,000,000;
(b) accrued interest on a Standby Borrowing (or portion
thereof)
being converted shall be paid by the Borrower at the time of
conversion;
(c) if any Eurocurrency Standby Loan is converted at a time
other
than the end of the Interest Period applicable thereto, the
Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.14;
(d) any portion of a Standby Borrowing maturing or required to
be
repaid in less than one month may not be converted into or
continued as a
Eurocurrency Standby Loan;
(e) any portion of a Eurocurrency Standby Loan which cannot
be
continued as a Eurocurrency Standby Loan by reason of clause (d)
above
shall be automatically converted at the end of the Interest
Period in
effect for such Eurocurrency Standby Loan into an ABR
Borrowing;
(f) no Interest Period may be selected for any Eurocurrency
Standby
Borrowing that would end later than the Maturity Date; and
(g) at any time when there shall have occurred and be continuing
any
Default or Event of Default, no Standby Loan may be converted
into or
continued as a Eurocurrency Standby Loan.
Each notice pursuant to this Section 2.04 shall be irrevocable
and
shall refer to this Agreement and specify (i) the identity and
amount of the
Standby Borrowing to be converted or continued, (ii) whether
such Standby
Borrowing is to be converted to or continued as a Eurocurrency
Standby Loan or
an ABR Standby Loan, (iii) if such notice requests a conversion,
the date of
such conversion (which shall be a Business Day) and (iv) if such
Standby
Borrowing is to be converted to or continued as a Eurocurrency
Standby Loan, the
Interest Period with respect thereto. If no Interest Period is
specified in any
such notice with respect to any conversion to or continuation as
a Eurocurrency
Standby Loan, the Borrower shall be deemed to have selected an
Interest Period
of one month's duration. If no notice shall have been given in
accordance with
this Section 2.04 to convert or continue any Standby Borrowing,
such Standby
Borrowing shall, at the end of the Interest Period applicable
thereto (unless
repaid pursuant to the terms hereof), automatically be continued
into a new
Interest Period as an ABR Standby Loan.
SECTION 2.05. Fees. (a) The Company agrees to pay to each
Lender,
through the Administrative Agent, on each March 31, June 30,
September 30 and
December 31 (with the first payment being due on June 30, 2004)
and on each date
on which the Commitment of such Lender shall be terminated as
provided herein, a
facility fee (a "Facility Fee"), at a rate per annum equal to
0.10% on the
amount of the Commitment of such Lender, whether used or unused,
during the
preceding quarter (or other period commencing on the date
hereof, or ending with
the Maturity Date or any date on which the Commitment of such
Lender shall be
terminated). All Facility Fees
<PAGE>
15
shall be computed on the basis of the actual number of days
elapsed in a year of
365 or 366 days, as the case may be. The Facility Fee due to
each Lender shall
commence to accrue on the date hereof, and shall cease to accrue
on the earlier
of the Maturity Date and the termination of the Commitment of
such Lender as
provided herein.
(b) The Company agrees to pay the Administrative Agent, for its
own
account, the administrative and other fees separately agreed to
by the Company
and the Administrative Agent (the "Administrative Fees").
(c) For each day on which the sum of the outstanding
principal
amount of Loans shall be greater than 50% of the total
Commitments, the Company
shall pay to the Administrative Agent for the account of each
Lender a
utilization fee (a"Utilization Fee") at a rate per annum equal
to 0.125% on the
amount of the outstanding Loans of such Lender on such day.
Accrued Utilization
Fees, if any, shall be payable in arrears on each March 31, June
30, September
30 and December 31, on the date on which the Commitments
terminate and on any
later date on which the Loans are repaid in full; provided,
however, that if
Utilization Fees would be payable on a day other than a Business
Day, such date
of payment shall be extended to the next succeeding Business
Day.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution,
if and as
appropriate, among the Lenders except that the Administrative
Fees shall be paid
pursuant to paragraph (b) above. Once paid, none of the Fees
shall be refundable
under any circumstances.
SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby agrees that the outstanding principal balance of
each Standby
Loan shall be payable on the Maturity Date. Each Loan shall bear
interest on the
outstanding principal balance thereof as set forth in Section
2.07.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing the indebtedness to such
Lender resulting from
each Loan made by such Lender from time to time, including the
amounts of
principal and interest payable and paid to such Lender from time
to time under
this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it
will record (i) the amount of each Loan made hereunder, the
currency of each
Loan, the Borrower of each Loan, the Type of each Loan made and
the Interest
Period applicable thereto, (ii) the amount of any principal or
interest due and
payable or to become due and payable from each Borrower to each
Lender hereunder
and (iii) the amount of any sum received by the Administrative
agent hereunder
from each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.06 shall, to the extent
permitted by
applicable law, be prima facie evidence of the existence and
amounts of the
obligations therein recorded; provided, however, that the
failure of any Lender
or the Administrative Agent
<PAGE>
16
to maintain such accounts or any error therein shall not in any
manner affect
the obligations of the Borrowers to repay the Loans in
accordance with their
terms.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions
of
Section 2.08, the Loans comprising each Eurocurrency Borrowing
shall bear
interest (computed on the basis of the actual number of days
elapsed over a year
of 360 days) at a rate per annum equal to the LIBO Rate for the
Interest Period
in effect for such Borrowing plus the Applicable Percentage.
(b) Subject to the provisions of Section 2.08, the Loans
comprising
each ABR Borrowing shall bear interest (computed on the basis of
the actual
number of days elapsed over a year of 365 or 366 days, as the
case may be, for
periods during which the Alternate Base Rate is determined by
reference to the
Prime Rate and 360 days for other periods) at a rate per annum
equal to the
Alternate Base Rate.
(c) Interest on each Loan shall be payable on each Interest
Payment
Date applicable to such Loan except as otherwise provided in
this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest
Period or day
within an Interest Period, as the case may be, shall be
determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest
error.
SECTION 2.08. Default Interest. If a Borrower shall default in
the
payment of the principal of or interest on any Loan or any other
amount becoming
due hereunder, whether by scheduled maturity, notice of
prepayment, acceleration
or otherwise, such Borrower shall on demand from time to time
from the
Administrative Agent pay interest, to the extent permitted by
law, on such
defaulted amount up to (but not including) the date of actual
payment (after as
well as before judgment) at a rate per annum (computed as
provided in Section
2.07(b)) equal to the Alternate Base Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. In the event, and on
each
occasion, that on the day two Business Days prior to the
commencement of any
Interest Period for a Eurocurrency Borrowing, the Administrative
Agent shall
have determined (i) that deposits in the currency and principal
amounts of the
Eurocurrency Loans comprising such Borrowing are not generally
available in the
London market or (ii) that reasonable means do not exist for
ascertaining the
LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter,
give telecopy notice of such determination to the Borrower and
the Lenders. In
the event of any such determination under clause (i) or (ii)
above, until the
Administrative Agent shall have advised the Company and the
Lenders that the
circumstances giving rise to such notice no longer exist, any
request by a
Borrower for a Eurocurrency Standby Loan pursuant to Section
2.03(a) shall be
deemed to be a request for an ABR Borrowing. In the event the
Required Lenders
notify the Administrative Agent that the rates at which Dollar
deposits are
being offered will not adequately and fairly reflect the cost to
such Lenders of
making or maintaining Eurocurrency Loans in Dollars during such
Interest Period,
the Administrative Agent shall notify the applicable Borrower of
such notice and
until the Required Lenders shall have advised the Administrative
Agent that the
circumstances giving rise to such notice
<PAGE>
17
no longer exist, any request by such Borrower for a Eurocurrency
Standby Loan
shall be deemed a request for an ABR Borrowing. Each
determination by the
Administrative Agent hereunder shall be made in good faith and
shall be
conclusive absent manifest error.
SECTION 2.10. Termination and, Reduction of Commitments. (a)
The
Commitments shall be automatically terminated on the Maturity
Date.
(b) Upon at least three Business Days, prior irrevocable
telecopy
notice to the Administrative Agent, the Company may at any time
in whole
permanently terminate, or from time to time in part permanently
reduce, the
Total Commitment; provided, however, that (i) each partial
reduction of the
Total Commitment shall be in an integral multiple of $10,000,000
and in a
minimum principal amount of $50,000,000 and (ii) no such
termination or
reduction shall be made (A) which would reduce the Total
Commitment to an amount
less than the aggregate Standby Credit Exposures or (B) which
would reduce any
Lender's Commitment to an amount that is less than the sum of
such Lender's
Standby Credit Exposure.
(c) Each reduction in the Total Commitment hereunder shall be
made
ratably among the Lenders in accordance with their respective
Commitments. The
Borrowers shall pay to the Administrative Agent for the account
of the Lenders,
on the date of each reduction or termination of the Total
Commitment, the
Facility Fees on the amount of the Commitments terminated
accrued through the
date of such termination or reduction.
(d) The Commitments will be automatically and permanently
reduced by
an amount equal to the Net Proceeds of any sale or issuance by
any Borrower or
any Subsidiary of any Borrower of any debt or equity securities
in any public
offering or Rule 144A or other private placement transaction
(other than (i) any
sale by any Borrower of commercial paper and (ii) any sale of
equity securities
to employees, officers and directors of any Borrower or any
Subsidiary of any
Borrower upon the exercise of employee stock options or pursuant
to any employee
compensation or incentive arrangement). Each reduction in the
Commitments
pursuant to this paragraph (d) will be effective on the second
Business Day
following the date of receipt by a Borrower or a Subsidiary of
the Net Proceeds
from any such sale or issuance.
SECTION 2.1l. Prepayment. (a) Each Borrower shall have the right
at
any time and from time to time to prepay any Standby Borrowing
in whole or in
part, upon giving telecopy notice (or telephone notice promptly
confirmed by
telecopy) to the Administrative Agent: (i) before 10:00 a.m.,
New York City
time, three Business Days prior to prepayment, in the case of
Eurocurrency
Standby Loans, and (ii) before 10:00 a.m., New York City time,
one Business Day
prior to prepayment, in the case of ABR Standby Loans; provided,
however, that
each partial prepayment shall be in an amount which is, in the
case of any
Standby Borrowing, an integral multiple of $10,000,000 and not
less than
$50,000,000.
<PAGE>
18
(b) On the date of any termination or reduction of the
Commitments
pursuant to Section 2.10, the Borrowers shall pay or prepay so
much of the
Standby Borrowings as shall be necessary in order that the
aggregate Standby
Credit Exposures will not exceed the Total Commitment after
giving effect to
such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date
and
the principal amount of each Borrowing (or portion thereof) to
be prepaid, shall
be irrevocable and shall commit the applicable Borrower to
prepay such Borrowing
(or portion thereof) by the amount stated therein on the date
stated therein.
All prepayments under this Section 2.11 shall be subject to
Section 2.14 but
otherwise without premium or penalty. All prepayments under this
Section 2.11
shall be accompanied by accrued interest on the principal amount
being prepaid
to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a)
Notwithstanding any other provision herein, if after the date of
this Agreement
any change in applicable law or regulation or in the
interpretation or
administration thereof by any Governmental Authority charged
with the
interpretation or administration thereof (whether or not having
the force of
law) shall result in the imposition, modification or
applicability of any
reserve, special deposit or similar requirement against assets
of, deposits with
or for the account of or credit extended by any Lender, or shall
result in the
imposition on any Lender or the London interbank market of any
other condition
affecting this Agreement, such Lender's Commitment or any
Eurocurrency Loan made
by such Lender, and the result of any of the foregoing shall be
to increase the
cost to such Lender of making or maintaining any Eurocurrency
Loan or to reduce
the amount of any sum received or receivable by such Lender
hereunder (whether
of principal, interest or otherwise) by an amount deemed by such
Lender to be
material, then such additional amount or amounts as will
compensate such Lender
for such additional costs or reduction will be paid by the
Borrowers to such
Lender as provided in paragraph (c) of this Section.
(b) If any Lender shall have determined that the adoption of
any
law, rule, regulation or guideline arising out of the July 1988
report of the
Basle Committee on Banking Regulations and Supervisory Practices
entitled
"International Convergence of Capital Measurement and Capital
Standards", or the
adoption after the date hereof of any other law, rule,
regulation or guideline
regarding capital adequacy, or any change in any of the
foregoing or in the
interpretation or administration of any of the foregoing by any
Governmental
Authority, central bank or comparable agency charged with the
interpretation or
administration thereof, or compliance by any Lender (or any
lending office of
such Lender) or any Lender's holding company with any request or
directive
regarding capital adequacy (whether or not having the force of
law) of any such
authority, central bank or comparable agency, has or would have
the effect of
reducing the rate of return on such Lender's capital or on the
capital of such
Lender's holding company, if any, as a consequence of this
Agreement, such
Lender's Commitment or the Loans made issued by such Lender
pursuant hereto to a
level below that which such Lender or such Lender's holding
company could have
achieved but for such adoption, change or compliance (taking
into consideration
such Lender's policies and the policies of such Lender's holding
company with
respect to capital adequacy) by an amount
<PAGE>
19
deemed by such Lender to be material, then from time to time
such additional
amount or amounts as will compensate such Lender for such
reduction will be paid
by the Borrowers to such Lender.
(c) A certificate of any Lender setting forth such amount or
amounts
as shall be necessary to compensate such Lender or its holding
company as
specified in paragraph (a) or (b) above, as the case may be,
shall be delivered
to the Company and shall be conclusive absent manifest error.
The Borrowers
shall pay such Lender the amount shown as due on any such
certificate delivered
by it within 10 days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for
any
increased costs or reduction in amounts received or receivable
or reduction in
return on capital with respect to any period shall not
constitute a waiver of
such Lender's right to demand compensation with respect to such
period or any
other period; provided, however, that no Lender shall be
entitled to
compensation under this Section 2.12 for any costs incurred or
reductions
suffered with respect to any date unless it shall have notified
the Company that
it will demand compensation for such costs or reductions under
paragraph (c)
above not more than 90 days after the later of (i) such date and
(ii) the date
on which it shall have become aware of such costs or reductions.
The protection
of this Section shall be available to each Lender regardless of
any possible
contention of the invalidity or inapplicability of the law,
rule, regulation,
guideline or other change or condition which shall have occurred
or been
imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any
other
provision herein, if any change in any law or regulation or in
the
interpretation thereof by any Governmental Authority charged
with the
administration or interpretation thereof shall make it unlawful
for any Lender
to make or maintain any Eurocurrency Loan or to give effect to
its obligations
as contemplated hereby with respect to any Eurocurrency Loan,
then, by written
notice to the Company and to the Administrative agent, such
Lender may:
(i) declare that Eurocurrency Loans will not thereafter be made
by
such Lender hereunder, whereupon any request for a Eurocurrency
Standby
Loan shall, as to such Lender only, be deemed a request for an
ABR Loan,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurocurrency Loans made by it
be
converted to ABR Loans, in which event all such Eurocurrency
Loans shall
be automatically converted to ABR Loans as of the effective date
of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or
(ii) above with
respect to Eurocurrency Loans, all payments and prepayments of
principal which
would otherwise have been applied to repay the Eurocurrency
Loans that would
have been made by such Lender or the converted Eurocurrency
Loans, of such
Lender shall instead be applied to
<PAGE>
20
repay the ABR Loans made by such Lender in lieu of, or resulting
from the
conversion of, such Eurocurrency Loans.
(b) For purposes of this Section 2.13, a notice by any Lender
shall
be effective as to each Eurocurrency Loan, if lawful, on the
last day of the
Interest Period currently applicable to such Eurocurrency Loan;
in all other
cases such notice shall be effective on the date of receipt.
SECTION 2.14. Indemnity. The Borrowers shall indemnify each
Lender
against any out-of-pocket loss or expense which such Lender may
sustain or incur
as a consequence of (a) any failure to borrow or to refinance,
convert or
continue any Loan hereunder after irrevocable notice of such
borrowing,
refinancing, conversion or continuation has been given pursuant
to Section 2.03
or 2.04, (b) any payment, prepayment or conversion, or
assignment required under
Section 2.19, of a Eurocurrency Loan required by any other
provision of this
Agreement or otherwise made or deemed made on a date other than
the last day of
the Interest Period, if any, applicable thereto, (c) any default
in payment or
prepayment of the principal amount of any Loan or any part
thereof or interest
accrued thereon, as and when due and payable (at the due date
thereof, whether
by scheduled maturity, acceleration, irrevocable notice of
prepayment or
otherwise) or (d) the occurrence of any Event of Default,
including, in each
such case, any loss or reasonable expense sustained or incurred
or to be
sustained or incurred in liquidating or employing deposits from
third parties
acquired to effect or maintain such Loan or any part thereof as
a
Eurocurrency Loan. Such loss or reasonable expense shall include
an amount equal
to the excess, if any, as reasonably determined by such Lender,
of (i) its cost
of obtaining the funds for the Loan being paid, prepaid,
refinanced or not
borrowed (assumed to be the LIBO Rate applicable thereto) for
the period from
the date of such payment, prepayment, refinancing or failure to
borrow or
refinance to the last day of the Interest Period for such Loan
(or, in the case
of a failure to borrow or refinance the Interest Period for such
Loan which
would have commenced on the date of such failure) over (ii) the
amount of
interest (as reasonably determined by such Lender) that would be
realized by
such Lender in reemploying the funds so paid, prepaid or not
borrowed or
refinanced for such period or Interest Period, as the case may
be. A certificate
of any Lender setting forth any amount or amounts which such
Lender is entitled
to receive pursuant to this Section shall be delivered to such
Borrower and
shall be conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under
Sections
2.13 and 2.19, each payment of the Facility Fees and each
reduction of the
Commitments shall be allocated pro rata among the Lenders in
accordance with
their respective Commitments (or, if such Commitments shall have
expired or been
terminated, in accordance with the respective principal amounts
of their
outstanding Standby Loans). Except as required under Section
2.13, each payment
or repayment of principal of any Standby Borrowing and each
refinancing or
conversion of any Standby Borrowing shall be allocated pro rata
among the
Lenders in accordance with the respective principal amounts of
their outstanding
Standby Loans comprising such Borrowing, and each payment of
interest on any
Standby Borrowing shall be allocated pro rata among the Lenders
in accordance
with the respective amounts of accrued and
<PAGE>
21
unpaid interest on their outstanding Standby Loans comprising
such Borrowing.
Each Lender agrees that in computing such Lender's portion of
any Borrowing to
be made hereunder, the Administrative Agent may, in its
discretion, round each
Lender's percentage of such Borrowing to the next higher or
lower whole Dollar
amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if
it
shall, through the exercise of a right of banker's lien, setoff
or counterclaim,
or pursuant to a secured claim under Section 506 of Title 11 of
the United
States Code or other security or interest arising from, or in
lieu of, such
secured claim, received by such Lender under any applicable
bankruptcy,
insolvency or other similar law or otherwise, or by any other
means, obtain
payment (voluntary or involuntary) in respect of any Standby
Loans as a result
of which the unpaid principal portion of its Standby Loans shall
be
proportionately less than the unpaid principal portion of the
Standby Loans of
any other Lender, it shall be deemed simultaneously to have
purchased from such
other Lender at face value, and shall promptly pay to such other
Lender the
purchase price for, a participation in the Standby Loans of such
other Lender,
so that the aggregate unpaid principal amount of the Standby
Loans and
participations in the Standby Loans of each Lender shall be in
the same
proportion to the aggregate unpaid principal amount of all
Standby Loans then
outstanding as the principal amount of its Standby Loans prior
to such exercise
of banker's lien, setoff or counterclaim or other event was to
the principal
amount of all Standby Loans outstanding prior to such exercise
of banker's lien,
setoff or counterclaim or other event; provided, however, that,
if any such
purchase or purchases or adjustments shall be made pursuant to
this Section 2.16
and the payment giving rise thereto shall thereafter be
recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of
such recovery
and the purchase price or prices or adjustment restored without
interest. Any
Lender holding a participation in a Standby Loan deemed to have
been so
purchased may exercise any and all rights of banker's lien,
setoff or
counterclaim with respect to any and all moneys owing to such
Lender by reason
thereof as fully as if such Lender had made a Standby Loan in
the amount of such
participation.
SECTION 2.17. Payments. (a) The Borrowers shall make each
payment
(including principal of or interest on any Borrowing and any
Fees or other
amounts) hereunder without deduction, counter-claim or setoff in
immediately
available funds from an account in the United States not later
than 12:00 noon,
local time at the place of payment, on the date when due in
immediately
available funds to the Administrative Agent at its offices at
270 Park Avenue,
New York, New York. Each such payment shall be made in
Dollars.
(b) Whenever any payment (including principal of or interest on
any
Borrowing or any Fees or other amounts) hereunder shall become
due, or otherwise
would occur, on a day that is not a Business Day, such payment
may be made on
the next succeeding Business Day, and such extension of time
shall in such case
be included in the computation of interest or Fees, if
applicable.
SECTION 2.18. Taxes. (a) Any and all payments to the Lenders
hereunder shall be made, in accordance with Section 2.17, free
and clear of and
without deduction for any and all current or future taxes,
levies, imposts,
deductions, charges or
<PAGE>
22
withholdings, and all liabilities with respect thereto,
excluding (i) income
taxes imposed on the income of the Administrative Agent or any
Lender (or any
transferee or assignee thereof, including a participation holder
(any such
entity a "Transferee")) and (ii) franchise taxes imposed on the
income, assets
or net worth of the Administrative Agent or any Lender (or
Transferee), in each
case by the jurisdiction under the laws of which the
Administrative Agent or
such Lender (or Transferee) is organized or doing business
(other than as a
result of entering into this Agreement, performing any
obligations hereunder,
receiving any payments hereunder or enforcing any rights
hereunder), or any
political subdivision thereof (all such nonexcluded taxes,
levies, imposts,
deductions, charges, withholdings and liabilities, collectively
or individually,
"Taxes"). If any Borrower shall be required to deduct any Taxes
from or in
respect of any sum payable hereunder to any Lender (or any
Transferee) or the
Administrative Agent, (i) the sum payable shall be increased by
the amount (an
"additional amount") necessary so that after making all required
deductions
(including deductions applicable to additional sums payable
under this Section
2.18) such Lender (or Transferee) or the Administrative Agent
(as the case may
be) shall receive an amount equal to the sum it would have
received had no such
deductions been made, (ii) such Borrower shall make such
deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant
Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any
current or future
stamp or documentary taxes or any other excise or property
taxes, charges or
similar levies that arise from any payment made hereunder or
from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee)
and
the Administrative Agent for the full amount of Taxes and Other
Taxes paid by
such Lender (or Transferee) or the Administrative Agent, as the
case may be, and
any liability (including penalties, interest and expenses
(including reasonable
attorney's fees and expenses)) arising therefrom or with respect
thereto,
whether or not such Taxes or Other Taxes were correctly or
legally asserted by
the relevant Governmental Authority. A certificate as to the
amount of such
payment or liability prepared by a Lender (or Transferee) or the
Administrative
Agent on its behalf, absent manifest error, shall be final,
conclusive and
binding for all purposes. Such indemnification shall be made
within 30 days
after the date any Lender (or Transferee) or the Administrative
Agent, as the
case may be, makes written demand therefor, which written demand
shall be made
within 60 days of the date such Lender (or Transferee) or the
Administrative
Agent receives written demand for payment of such Taxes or Other
Taxes from the
relevant Governmental Authority.
(d) If a Lender (or Transferee) or the Administrative Agent
shall
become aware that it is entitled to claim a refund from a
Governmental Authority
in respect of Taxes or Other Taxes as to which it has been
indemnified by the
Borrowers, or with respect to which the Borrowers have paid
additional amounts,
pursuant to this Section 2.18, it shall promptly notify the
Borrowers of the
availability of such refund claim and shall, within 30 days
after receipt of a
request by the Borrowers, make a claim
<PAGE>
23
to such Governmental Authority for such refund at the Borrowers'
expense. If a
Lender (or Transferee) or the Administrative agent receives a
refund (including
pursuant to a claim for refund made pursuant to the preceding
sentence) in
respect of any Taxes or Other Taxes as to which it has been
indemnified by the
Borrowers or with respect to which the Borrowers have paid
additional amounts
pursuant to this Section 2.18, it shall within 30 days from the
date of such
receipt pay over such refund to the Borrowers (but only to the
extent of
indemnity payments made, or additional amounts paid, by the
Borrowers under this
Section 2.18 with respect to the Taxes or Other Taxes giving
rise to such
refund), net of all out-of-pocket expenses of such Lender (or
Transferee) or the
Administrative Agent and without interest (other than interest
paid by the
relevant Governmental Authority with respect to such refund);
provided, however,
that the Borrowers, upon the request of such Lender (or
Transferee) or the
Administrative Agent, agree to repay the amount paid over to the
Borrowers (plus
penalties, interest or other charges) to such Lender (or
Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or
the
Administrative Agent is required to repay such refund to such
Governmental
Authority.
(e) As soon as practicable after the date of any payment of
Taxes or
Other Taxes by the Borrowers to the relevant Governmental
Authority, the
Borrowers will deliver to the Administrative Agent, at its
address referred to
in Section 9.01, the original or a certified copy of a receipt
issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in
this Section 2.18
shall survive the payment in full of the principal of and
interest on all Loans
made hereunder.
(g) Each Lender (or Transferee) that is organized under the laws
of
a jurisdiction other than the United States, any State thereof
or the District
of Columbia (a "Non-U.S. Lender") shall deliver to the Company
and the
Administrative Agent two copies of either United States Internal
Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming
exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of
the Code with respect to payments of "portfolio interest", a
Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender
delivers a Form W-8BEN, a certificate representing that such
Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Code, is not a
10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the
Company and is not a controlled foreign corporation related to
the Company
(within the meaning of Section 864(d)(4) of the Code)), properly
completed and
duly executed by such Non-U.S. Lender claiming complete
exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the
Company under
this Agreement. Such forms shall be delivered by each Non-U.S.
Lender on or
before the date it becomes a party to this Agreement (or, in the
case of a
Transferee that is a participation holder, on or before the date
such
participation holder becomes a Transferee hereunder) and on or
before the date,
if any, such Non-U.S. Lender changes its applicable lending
office by
designating a different lending office (a "New Lending Office").
In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or
invalidity of any form
<PAGE>
24
previously delivered by such Non-U.S. Lender. Notwithstanding
any other
provision of this Section 2.18(g), a Non-U.S. Lender shall not
be required to
deliver any form pursuant to this Section 2.18(g) that such
Non-U.S. Lender is
not legally able to deliver.
(h) The Company shall not be required to indemnify any
Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender,
in respect of
United States Federal withholding tax pursuant to paragraph (a)
or (c) above to
the extent that (i) the obligation to withhold amounts with
respect to United
States Federal withholding tax existed on the date such Non-U.S.
Lender became a
party to this Agreement (or, in the case of a Transferee that is
a participation
holder, on the date such participation holder became a
Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such
Non-U.S. Lender
designated such New Lending Office with respect to a Loan;
provided, however,
that this clause (i) shall not apply to any Transferee or New
Lending Office
that becomes a Transferee or New Lending Office as a result of
an assignment,
participation, transfer or designation made at the request of
the Company; and
provided further, however, that this clause (i) shall not apply
to the extent
the indemnity payment or additional amounts any Transferee, or
Lender (or
Transferee) through a New Lending Office, would be entitled to
receive (without
regard to this clause (i)) do not exceed the indemnity payment
or additional
amounts that the person making the assignment, participation or
transfer to such
Transferee, or Lender (or Transferee) making the designation of
such New Lending
Office, would have been entitled to receive in the absence of
such assignment,
participation, transfer or designation or (ii) the obligation to
pay such
additional amounts would not have arisen but for a failure by
such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.
(i) Any Lender (or Transferee) claiming any indemnity payment
or
additional amounts payable pursuant to this Section 2.18 shall
use reasonable
efforts (consistent with legal and regulatory restrictions) to
file any
certificate or document reasonably requested in writing by the
Company or to
change the jurisdiction of its applicable lending office if the
making of such a
filing or change would avoid the need for or reduce the amount
of any such
indemnity payment or additional amounts that may thereafter
accrue and would
not, in the sole determination of such Lender (or Transferee),
be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.18 shall require any
Lender
(or Transferee) or the Administrative Agent to make available
any of its tax
returns (or any other information that it deems to be
confidential or
proprietary).
SECTION 2.19. Duty to Mitigate; Assignment of Commitments
Under
Certain Circumstances. (a) Any Lender (or Transferee) claiming
any additional
amounts payable pursuant to Section 2.12 or Section 2.18 or
exercising its
rights under Section 2.13 shall use reasonable efforts
(consistent with legal
and regulatory restrictions) to file any certificate or document
requested by
the Company or to change the jurisdiction of its applicable
lending office if
the making of such a filing or change would avoid the need for
or reduce the
amount of any such additional amounts which may thereafter
accrue or avoid the
circumstances giving rise to such exercise and would not, in the
sole
<PAGE>
25
determination of such Lender (or Transferee), be otherwise
disadvantageous to
such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice
or
certificate pursuant to Section 2.12 or 2.13, or the Company
shall be required
to make additional payments to any Lender under Section 2.18,
the Company shall
have the right, at its own expense, upon notice to such Lender
and the
Administrative Agent, to require such Lender to transfer and
assign without
recourse, representation or warranty (in accordance with and
subject to the
restrictions contained in Section 9.04) all interests, rights
and obligations
contained hereunder to another financial institution approved by
the
Administrative Agent (which approval shall not be unreasonably
withheld) which
shall assume such obligations; provided that (i) no such
assignment shall
conflict with any law, rule or regulation or order of any
Governmental Authority
and (ii) the assignee or the Company, as the case may be, shall
pay to the
affected Lender in immediately available funds on the date of
such assignment
the principal of and interest accrued to the date of payment on
the Loans made
by it hereunder and all other amounts accrued for its account or
owed to it
hereunder.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Organization; Powers. Each Borrower and each of
the
Subsidiaries (a) is a corporation duly organized, validly
existing and in good
standing under the laws of the jurisdiction of its organization,
(b) has all
requisite power and authority to own its property and assets and
to carry on its
business as now conducted and as proposed to be conducted, (c)
is qualified to
do business in every jurisdiction where such qualification is
required, except
where the failure so to qualify would not result in a Material
Adverse Effect,
and (d) in the case of each Borrower, has the corporate power
and authority to
execute, deliver and perform its obligations under the Loan
Documents and to
borrow hereunder and thereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance
by each of the Borrowers of each Loan Document to which it is or
will be a party
and the Borrowings hereunder (collectively, the "Transactions")
(a) have been
or, upon execution and delivery thereof, will be duly authorized
by all
requisite corporate action and (b) will not (i) violate (A) any
provision of any
law, statute, rule or regulation (including the Margin
Regulations) or of the
certificate of incorporation or other constitutive documents or
by-laws of the
Borrowers, (B) any order of any Governmental Authority or (C)
any provision of
any indenture, agreement or other instrument to which any
Borrower is a party or
by which it or any of its property is or may be bound, (ii) be
in conflict with,
result in a breach of or constitute (alone or with notice or
lapse of time or
both) a default under any such indenture, agreement or other
instrument or (iii)
result in the creation or imposition of any lien upon any
property or assets of
any Borrower.
<PAGE>
26
SECTION 3.03. Enforceability. This Agreement and each other
Loan
Document to which a Borrower is a party constitutes a legal,
valid and binding
obligation of each Borrower enforceable in accordance with its
terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval
of, registration or filing with or other action by any
Governmental Authority,
other than those which have been taken, given or made, as the
case may be, is or
will be required with respect to any Borrower in connection with
the
Transactions.
SECTION 3.05. Financial Statements. (a) The Company has
heretofore
furnished to the Administrative Agent and the Lenders copies of
its consolidated
balance sheet and statements of income, cash flow and retained
earnings as of
and for the year ended December 31, 2003. Such financial
statements present
fairly, in all material respects, the consolidated combined
financial condition
and the results of operations of the Company and the
Subsidiaries as of such
dates and for such periods in accordance with GAAP.
(b) As of the Effective Date, there has been no material
adverse
change in the consolidated financial condition of the Company
and the
Subsidiaries taken as a whole from the financial condition
reported in the
financial statements referenced in paragraph (a) of this Section
3.05.
SECTION 3.06. Litigation; Compliance with Laws. (a) As of
the
Effective Date, there are no actions, proceedings or
investigations filed or (to
the knowledge of the Borrowers) threatened or affecting any
Borrower or any
Subsidiary in any court or before any Governmental Authority or
arbitration
board or tribunal which question the validity or legality of
this Agreement, the
Transactions or any action taken or to be taken pursuant to this
Agreement and
no order or judgment has been issued or entered restraining or
enjoining any
Borrower or any Subsidiary from the execution, delivery or
performance of this
Agreement nor is there any other action, proceeding or
investigation filed or
(to the knowledge of any Borrower or any Subsidiary) threatened
against any
Borrower or any Subsidiary in any court or before any
Governmental Authority or
arbitration board or tribunal which would be reasonably likely
to result in a
Material Adverse Effect or materially restrict the ability of
any Borrower to
comply with its obligations under the Loan documents.
(b) Neither any Borrower nor any Subsidiary is in violation of
any
law, rule or regulation (including any law, rule or regulation
relating to the
protection of the environment or to employee health or safety),
or in default
with respect to any judgment, writ, injunction or decree of any
Governmental
Authority, where such violation or default would be reasonably
likely to result
in a Material Adverse Effect.
(c) No exchange control law or regulation materially restricts
any
Borrower from complying with its obligations in respect of any
Loan or otherwise
under this Agreement.
<PAGE>
27
SECTION 3.07. Federal Reserve Regulations. (a) Neither any
Borrower
nor any Subsidiary that will receive proceeds of the Loans
hereunder is engaged
principally, or as one of its important activities, in the
business of extending
credit for the purpose of purchasing or carrying Margin
Stock.
(b) No part of the proceeds of any Loan will be used,
whether
directly or indirectly, and whether immediately, incidentally or
ultimately, to
purchase or carry Margin Stock or to refund indebtedness
originally incurred for
such purpose, or for any other purpose which entails a violation
of, or which is
inconsistent with, the provisions of the Margin Regulations.
SECTION 3.08. Investment Company Act; Public Utility Holding
Company
Act. No Borrower is (a) an "investment company" as defined in,
or subject to
regulation under, the Investment Company Act of 1940 (the "1940
Act") or (b) a
"holding company" as defined in, or subject to regulation under,
the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Use of Proceeds. All proceeds of the Loans shall
be
used for the purposes referred to in the recitals to this
Agreement.
SECTION 3.10. Full Disclosure; No Material Misstatements. None
of
the representations or warranties made in writing by any
Borrower in connection
with this Agreement as of the date such representations and
warranties are made
or deemed made, and no report, financial statement or other
information
furnished by or on behalf of any Borrower to the Administrative
Agent or any
Lender pursuant to or in connection with this Agreement or the
credit facilities
established hereby, contains or will contain any material
misstatement of fact
or omits or will omit to state any material fact necessary to
make the
statements therein, in the light of the circumstances under
which they were or
will be made, not misleading.
SECTION 3.11. Taxes. Each Borrower and each of the material
Subsidiaries have filed or caused to be filed all Federal, state
and local tax
returns which are required to be filed by them, and have paid or
caused to be
paid all taxes shown to be due and payable on such returns or on
any assessments
received by any of them, other than any taxes or assessments the
validity of
which is being contested in good faith by appropriate
proceedings, and with
respect to which appropriate accounting reserves have to the
extent required by
GAAP been set aside.
SECTION 3.12. Employee Pension Benefit Plans. The present
aggregate
value of accumulated benefit obligations of all unfunded and
underfunded pension
plans of the Company and its Subsidiaries (based on those
assumptions used for
disclosure in corporate financial statements in accordance with
GAAP) did not,
as of December 31, 2003, exceed by more than $641,400,000 the
value of the
assets of all such plans. Of such $641,400,000, $179,600,000 is
primarily
attributable to employee pension plans in countries where the
funding of such
obligations is not required or customary and $98,700,000 relates
primarily to
domestic pension plans where funding is not permitted under
current tax
regulations. In these cases the Company has recorded book
reserves to
<PAGE>
28
meet the obligations. Trust assets totaling approximately
$29,000,000 have been
established to provide for certain of the foregoing domestic
pension benefits,
however, because of restrictions relating to bankruptcy or
insolvency, such
funds are not included in the funded amount of plans for
purposes of GAAP.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are
subject
to the satisfaction of the following conditions:
SECTION 4.01. All Extensions of Credit. On the date of each
Borrowing:
(a) The Administrative Agent shall have received a notice of
such
Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article
III
hereof shall be true and correct in all material respects on and
as of the date
of such Borrowing with the same effect as though made on and as
of such date,
except to the extent such representations and warranties
expressly relate to an
earlier date.
(c) At the time of and immediately after such Borrowing no Event
of
Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation
and warranty by
each Borrower on the date of such Borrowing or as to the matters
specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effective Date. On the Effective Date:
(a) The Administrative Agent shall have received a favorable
written
opinion of Kathleen S. Stolar, Esq., Vice President, Corporate
Secretary and
Associate General Counsel, dated the Effective Date and
addressed to the Lenders
and satisfactory to the Administrative Agent to the effect set
forth in Exhibit
C hereto.
(b) The Administrative Agent shall have received (i) a copy of
the
certificate of incorporation, including all amendments thereto,
of the Company,
certified as of a recent date by the Secretary of State of its
state of
incorporation, and a certificate as to the existence of the
Company as of a
recent date from such Secretary of State; (ii) a certificate of
the Secretary or
an Assistant Secretary of the Company dated the Effective Date
and certifying
(A) that attached thereto is a true and complete copy of the
by-laws of the
Company as in effect on the Effective Date and at all times
since a date prior
to the date of the resolutions described in clause (B) below,
(B) that attached
thereto is a true and complete copy of resolutions duly adopted
by the Board of
Directors of the Company authorizing the execution, delivery and
performance of
this Agreement and the Borrowings hereunder, and that such
resolutions have not
been modified, rescinded or
<PAGE>
29
amended and are in full force and effect, (C) that the
certificate of
incorporation referred to in clause (i) above has not been
amended since the
date of the last amendment thereto shown on the certificate of
existence
furnished pursuant to such clause (i) and (D) as to the
incumbency and specimen
signature of each officer executing this Agreement or any other
document
delivered in connection herewith on behalf of the Company; and
(iii) a
certificate of another officer of the Company as to the
incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate
pursuant to (ii) above.
(c) The Administrative Agent shall have received a
certificate,
dated the Effective Date and signed by a Financial Officer of
the Company,
confirming compliance with the conditions precedent set forth in
paragraphs (b)
and (c) of Section 4.01.
(d) The Administrative Agent shall have received any Fees or
other
amounts due and payable hereunder on or prior to the Effective
Date.
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. On
or
prior to the first date on which Loans are made to the benefit
of any Borrowing
Subsidiary:
(a) The Lenders shall have received the favorable written
opinion of
counsel satisfactory to the Administrative Agent, addressed to
the Lenders and
satisfactory to the Administrative Agent to the effect set forth
in Exhibit C
hereto.
(b) Each Lender shall have received a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.
ARTICLE V
Covenants
A. Affirmative Covenants. Each Borrower covenants and agrees
with
each Lender and the Administrative Agent that so long as this
Agreement shall
remain in effect or the principal of or interest on any Loan or
any Fees or any
other amounts payable hereunder shall be unp
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