CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of July 26, 2000, among WEST PHARMACEUTICAL
SERVICES, INC., a Pennsylvania corporation (the "Company"), the direct and
indirect subsidiaries of the Company from time to time parties hereto
(collectively, the "Borrowers"), the several banks and other financial
institutions from time to time parties hereto (the "Banks") and PNC BANK,
NATIONAL ASSOCIATION, as agent for the Banks hereunder (in such capacity, the
"Agent").
W I T N E S S E T H:
In consideration of the promises and the agreements hereinafter set forth,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Affected Bank": has the meaning assigned to such term in Section 2.24.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person and any member, director, officer
or employee of any such Person. For purposes of this definition, "control" shall
mean the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors of such
Person or (b) direct or in effect cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or otherwise
modified from time to time.
"Applicable Margin": for any LIBOR Loan on any date, the percentage per
annum set forth below in the column entitled 364 Day Facility or Five Year
Facility, as applicable, opposite the Leverage Ratio shown on the last
Compliance Certificate delivered by the Borrowers to the Agent pursuant to
subsection 5.2(b) prior to such date:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Level Leverage Ratio 364 Day Facility Five Year Facility
I Less than or equal to 0.50% 0.475%
0.35 to 1.0
II Less than or equal to 0.45 0.60% 0.575%
to 1.0 but greater than
0.35 to 1.0
III Greater than 0.45 to 1.0 0.825% 0.80%
</TABLE>
; provided, however, that (a) adjustments, if any, to the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective five Business
Days after the Agent has received a Compliance Certificate, (b) in the event
that no Compliance Certificate has been delivered for a fiscal quarter prior to
the last date on which it can be delivered without violation of subsection
5.2(b), the Applicable Margin from such date until such Compliance Certificate
is actually delivered shall be that applicable under Level III, (c) in the event
that the actual Leverage Ratio for any fiscal quarter is subsequently determined
to be greater than that set forth in the Compliance Certificate for such fiscal
quarter, the Applicable Margin shall be recalculated for the applicable period
based upon such actual Leverage Ratio and (d) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the Compliance
Certificate for the fiscal quarter ending September 30, 2000, the Applicable
Margin shall be that applicable under Level III. Any additional interest on the
Loans resulting from the operation of clause (c) above shall be payable by the
Borrowers jointly and severally to the Banks within five (5) days after receipt
of a written demand therefor from the Agent.
"Application": in respect of each Letter of Credit issued by the Issuing
Bank, an application, in such form as the Issuing Bank may specify from time to
time, requesting issuance of such Letter of Credit.
"Assignment and Acceptance": an assignment and acceptance entered into by a
Bank and a Purchasing Bank, and accepted by the Agent, in the form of Exhibit B
attached hereto, or such other form as shall be approved by the Agent.
"Base Rate": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100th 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
one half of one percent (0.5%). If for any reason the 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 Agent to obtain sufficient quotations
in accordance with the definition of such term, the 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 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, as the case may be.
"Base Rate Loan": any Loan bearing interest at a rate determined by
reference to the Base Rate.
"Borrowers' Representative": has the meaning assigned to such term in
Section 2.20.
"Borrowing Date": any Business Day on which a Loan is to be made at the
request of the Borrowers under this
Agreement.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in Philadelphia, Pennsylvania are authorized or required by law
to close and (a) with respect to advances or payments of Loans or any other
matters relating to Loans denominated in an Optional Currency, such day also
shall be a day on which dealings in deposits in the relevant Optional Currency
are carried on in the applicable interbank market, (b) with respect to advances
or payments of Loans denominated in an Optional Currency, such day shall also be
a day on which all applicable banks into which Loan proceeds may be deposited
are open for business and foreign exchange markets are open for business in the
principal financial center of the country of such currency and (c) with respect
to advances of LIBOR Loans made in Dollars or any other matters relating to
LIBOR Loans made in Dollars, such day shall also be a day on which banks are
open for dealings in dollar deposits in the London Interbank Market.
"Capital Lease" at any time, a lease with respect to which the lessee is
required to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.
"Capital Lease Obligations": at any time, the amount of the obligations
under Capital Leases which would be shown at such time as a liability on a
consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Change of Control": an event or series of events by which (a) any
"person" or "group" (as such terms are defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder), is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under such Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such Person has the
right to acquire without condition, other than passage of time, whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total voting power of the then outstanding
Voting Stock of the Company, or (b) from and after the date hereof, individuals
who on the date hereof constitute the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors then still in office who were either
directors on the date hereof or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Closing Date": the first date on which all of the conditions precedent set
forth in Section 4.1 have been satisfied or waived by the Agent, which date is
July 26, 2000.
"Closing Fee": the closing fee in the amount of $185,625, payable by the
Borrowers to the Agent in Dollars, for distribution to the Banks based on their
respective Ratable Share of the Total Commitments.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitments": the 364 Day Commitments and/or the Five Year Commitments, as
the context may require.
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001 of
ERISA or is part of a group which includes the Company and which is treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Compliance Certificate": has the meaning assigned to such term in
subsection 5.2(b).
"Computation Date": has the meaning assigned to such term in subsection
2.6(a).
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or any provision of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Costs": has the meaning assigned to such term in subsection 2.16(d).
"Declining Bank's 364 Day Maturity Date": has the meaning assigned to such
term in subsection 2.14(d)(i).
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition precedent therein set forth, has been satisfied.
"Distribution": in respect of any Person, (a) dividends or other
distributions on Capital Stock of such Person (except distributions in Capital
Stock of such Person); (b) the redemption or acquisition of such Capital Stock
or of warrants, rights or other options to purchase such Capital Stock (except
when solely in exchange for Capital Stock of such Person); and (c) any payment
on account of, or the setting apart of any assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of any share of any class of Capital Stock of such Person or any
warrants or options to purchase any such Capital Stock.
"Dollar Equivalent": with respect to any amount of any currency, the
Equivalent Amount of such currency expressed in Dollars.
"Dollar Equivalent Facility Usage": (a) as to the 364 Day Facility, at any
time the Dollar Equivalent amount of all 364 Day Loans then outstanding and (b)
as to the Five Year Facility, at any time the sum of (i) the Dollar Equivalent
amount of all Five Year Loans and the aggregate amount of all Swing Line Loans
then outstanding, and (ii) the Letter of Credit Obligations then outstanding.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"EBIT": shall mean, for any period, consolidated net income (or net loss)
plus the sum of (a) interest expense, (b) income tax expense, (c) extraordinary
or unusual losses or other losses not incurred in the ordinary course of
business, (d) any non-cash charge against net income required to be recognized
in connection with the issuance of capital stock to employees (whether upon
lapse of vesting restrictions, exercise of employee options or otherwise) and
(e) any non-cash charge against net income required to be recognized in
connection with employee pension plans, in each case to the extent included in
the calculation of consolidated net income, less extraordinary or unusual gains
or other gains not incurred in the ordinary course of business included in the
calculation of consolidated net income, in each case determined for the Company
and its Subsidiaries on a consolidated basis in accordance with GAAP for such
period.
"Environmental Laws": any and all Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees or binding
requirements of any Governmental Authority, or binding Requirement of Law
regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment, as now or may at any time hereafter be in effect.
"Equivalent Amount": at any time, as determined by the Agent (which
determination shall be conclusive absent manifest error), with respect to an
amount of any currency (the "Reference Currency") which is to be computed as an
equivalent amount of another currency (the "Equivalent Currency"), the amount of
such Equivalent Currency converted from such Reference Currency using the
average spot rate quoted to the Agent (based on the market rates then prevailing
and available to the Agent) or the commercial market rate of exchange, as
determined by the Agent, for the sale of such Equivalent Currency for such
Reference Currency at a time determined by the Agent on the second Business Day
immediately preceding the event for which such calculation is made.
"Equivalent Currency": has the meaning assigned to such term in the
definition of Equivalent Amount.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Euro": Euro units.
"Eurocurrency Rate Reserve Percentage": the maximum percentage (expressed
as a decimal rounded upward to the nearest 1/100 of 1%) as determined by the
Agent which is in effect during any relevant period: (i) as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System; and
(ii) to be maintained by a Bank as required for reserve liquidity, special
deposit, or a similar purpose by any governmental or monetary authority of any
country or political subdivision thereof (including any central bank), against
(A) any category of liabilities that includes deposits by reference to which a
LIBOR Rate is to be determined, or (B) any category of extension of credit or
other assets that includes Loans or Tranches to which a LIBOR Rate applies.
"Event of Default": any of the events specified in Section 7, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Existing Credit Agreement": the Credit Agreement, dated as of August 28,
1995, among certain of the Borrowers, First Union National Bank (formerly
CoreStates Bank, N.A.), as agent, and the banks and financial institutions from
time to time parties thereto, as heretofore amended, supplemented or otherwise
modified.
"Extension Request": has the meaning assigned to such term in subsection
2.14(d)(i).
"Extensions of Credit": the collective reference to Loans made and Letters
of Credit issued under this Agreement.
"Facilities": the 364 Day Facility and the Five Year Facility.
"Facility Fees": those certain fees payable to the Banks on the Facilities
as described in subsection 2.7(a).
"Facility Fee Rate": for any Facility on any date, the percentage per annum
set forth below in the column entitled 364 Day Facility or Five Year Facility,
as applicable, opposite the Leverage Ratio shown on the last Compliance
Certificate delivered by the Borrowers to the Agent pursuant to subsection
5.2(b) prior to such date:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Level Leverage Ratio 364 Day Facility Five Year Facility
I Less than or equal to 0.125% 0.15%
0.35 to 1.0
II Less than or equal to 0.45 0.15% 0.175%
to 1.0 but greater than
0.35 to 1.0
III Greater than 0.45 to 1.0 0.175% 0.20%
</TABLE>
; provided, however, that, (a) adjustments, if any, to the Facility Fee Rate
resulting from a change in the Leverage Ratio shall be effective five Business
Days after the Agent has received a Compliance Certificate, (b) in the event
that no Compliance Certificate has been delivered for a fiscal quarter prior to
the last date on which it can be delivered without violation of subsection
5.2(b), the Facility Fee Rate from such date until such Compliance Certificate
is actually delivered shall be that applicable under Level III, (c) in the event
that the actual Leverage Ratio for any fiscal quarter is subsequently determined
to be greater than that set forth in the Compliance Certificate for such fiscal
quarter, the Facility Fee Rate shall be recalculated for the applicable period
based upon such actual Leverage Ratio and (d) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the Compliance
Certificate for the fiscal quarter ending September 30, 2000, the Facility Fee
Rate shall be that applicable under Level III. Any additional Facility Fee that
is due to the Banks resulting from the operation of clause (c) above shall be
payable by the Borrowers jointly and severally within five (5) days after
receipt of a written demand therefor from the Agent.
"Federal Funds Effective Rate": for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter": the letter, dated May 31, 2000, from the Agent to the Company
relating to the payment of certain fees and expenses in connection with the
transactions contemplated hereby, as amended, supplemented or otherwise modified
from time to time.
"Five Year Bank": at any time, the Bank or Banks which at that time are
obligated, subject to the terms of this Agreement, to make Five Year Loans, to
issue or participate in Letters of Credit and to make or participate in Swing
Line Loans (or, at any time after the Five Year Commitments shall have expired
or been terminated, any Bank that has Five Year Loans then outstanding or a
participation in Letters of Credit or Swing Line Loans then outstanding).
"Five Year Commitment": as to any Five Year Bank, the obligation of such
Bank to make Five Year Loans, to issue and/or acquire participating interests in
Letters of Credit hereunder and to make or participate in Swing Line Loans, in
an aggregate Dollar Equivalent amount at any one time outstanding not to exceed
the amount set forth opposite such Bank's name on Schedule I hereto under the
caption "Five Year Commitment," as the same may be changed from time to time in
accordance with the provisions of this Agreement and/or any applicable
Assignment and Acceptance.
"Five Year Commitment Percentage": as to any Five Year Bank at any time,
the percentage which such Bank's Five Year Commitment constitutes of the
aggregate Five Year Commitments of all Five Year Banks at such time (or at any
time after the Five Year Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Five Year Exposure constitutes of the
aggregate amount of the Five Year Exposure of all Five Year Banks at such time).
"Five Year Commitment Period": the period from and including the date
hereof to but not including the Five Year Termination Date.
"Five Year Exposure": as to any Five Year Bank at any date, an amount equal
to the sum of (a) the aggregate Dollar Equivalent amount of all Five Year Loans
made by such Bank then outstanding, (b) such Bank's Five Year Commitment
Percentage of the Letter of Credit Obligations then outstanding and (c) such
Bank's Five Year Commitment Percentage of the amount of the Swing Line Loans
then outstanding.
"Five Year Facility": the revolving credit facility pursuant to which the
Five Year Banks have committed to make Five Year Loans, to issue and/or acquire
participating interests in Letters of Credit hereunder and to make or
participate in Swing Line Loans.
"Five Year Loans": has the meaning assigned to such term in
subsection 2.1(b).
"Five Year Notes": has the meaning assigned to such term in Section 2.3, as
the same may be amended, supplemented or otherwise modified from time to time.
"Five Year Termination Date": with respect to the Five Year Facility, the
earlier of (a) July 25, 2005 and (b) the date the Five Year Commitments are
terminated as provided herein.
"Foreign Borrower": shall mean any Borrower organized under the laws of any
jurisdiction other than the United States of America or one of its states,
commonwealths or territories or the District of Columbia.
"Foreign Subsidiary": shall mean any Subsidiary organized under the laws of
any jurisdiction other than the United States of America or one of its states,
commonwealths or territories or the District of Columbia.
"GAAP": at any time with respect to the determination of the character or
amount of any asset or liability or item of income or expense, or any
consolidation or other accounting computation, generally accepted accounting
principles as in effect in the United States on the date of, or at the end of
the period covered by, the financial statements from which such asset,
liability, item of income, or item of expense, is derived, or, in the case of
any such computation, as in effect on the date when such computation is required
to be determined, consistently applied.
"Governmental Acts": has the meaning assigned to such term in subsection
2.8(j).
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guaranty Obligation": as to any Person, any guarantee of payment or
performance by such Person of any Indebtedness or other obligation of any other
Person, or any agreement to provide financial assurance with respect to the
financial condition, or the payment of the obligations of, such other Person
(including, without limitation, purchase or repurchase agreements, reimbursement
agreements with respect to letters of credit or acceptances, indemnity
arrangements, grants of security interests to support the obligations of another
Person, keepwell agreements and take-or-pay or through-put arrangements) which
has the effect of assuring or holding harmless any third Person against loss
with respect to one or more obligations of such third Person; provided, however,
the term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation of any Person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made and (b) the maximum amount for
which such contingently liable Person may be liable pursuant to the terms of the
instrument embodying such Guaranty Obligation, unless such primary obligation
and the maximum amount for which such contingently liable Person may be liable
are not stated or determinable, in which case the amount of such Guaranty
Obligation shall be such contingently liable Person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith. Guaranty Obligations of any Person shall include the amount of any future
"earn-out" or similar payments to be made to any other Person in connection with
a Permitted Acquisition whether or not the same are reflected as indebtedness on
the financial statements of the contingently liable Person.
"Indebtedness": of any Person at any date, without duplication:
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities incurred in
the ordinary course of business not more than 60 days overdue (or being
contested in good faith) and payable in accordance with customary practices),
including earn-outs and similar obligations,
(b) any other indebtedness which is evidenced by a note, bond, debenture or
similar instrument,
(c) all Capital Lease Obligations of such Person,
(d) all obligations of such Person in respect of outstanding letters of
credit, acceptances and similar obligations created for the account of such
Person,
(e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof,
(f) all redemption obligations, prior to the Five Year Termination Date, in
respect of Redeemable preferred stock of such Person,
(g) net liabilities of such Person under interest rate cap agreements,
interest rate swap agreements, foreign currency exchange agreements, netting
agreements and other hedging agreements or arrangements (calculated on a basis
satisfactory to the Agent and in accordance with accepted practice),
(h) withdrawal liabilities of such Person or any Commonly Controlled Entity
under a Plan, and
(i) all Guaranty Obligations of such Person with respect to liabilities of
a type described in any of clauses (a) through (h) of this definition.
The Indebtedness of any Person shall include any Indebtedness of any
partnership in which such Person is the general partner.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": has the meaning ascribed thereto in Section 3.16.
"Interest Coverage Ratio": for any period, the ratio of (a) EBIT plus 50%
of depreciation and amortization expense to (b) interest expense, in each case
for the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of each
calendar quarter while such Loan is outstanding, (b) as to any LIBOR Loan having
an Interest Period of three months or less, the last day of such Interest
Period, and (c) as to any LIBOR Loan having an Interest Period longer than three
months, the day which is (i) three months after the first day of such Interest
Period and (ii) the last day of such Interest Period.
"Interest Period": with respect to any LIBOR Loan:
(a) initially the period commencing on the borrowing or continuation date,
as the case may be, with respect to such LIBOR Loan and ending one, two, three
or six months thereafter, as selected by the Borrowers in their Notice of
Borrowing, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Loan and ending one, two,
three or six months thereafter, as selected by the Borrowers by irrevocable
notice to the Agent in a Notice of Borrowing not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided, that the foregoing provisions relating to Interest Periods are subject
to the following:
(i) 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 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;
(ii) with respect to LIBOR Loans, any Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
(iii) with respect to 364 Day Loans that are LIBOR Loans, no Interest
Period shall extend beyond the 364 Day Termination Date or any Declining
Bank's 364 Day Maturity Date; and
(iv) with respect to Five Year Loans that are LIBOR Loans, no Interest
Period shall extend beyond the Five Year Termination Date.
"Issuing Bank": PNC Bank, National Association, or such other Bank as
designated by the Company to be the Issuing Bank and approved by the
Required Banks, in its capacity as issuer of any Letter of Credit.
"Joinder and Assumption Agreement": a Joinder and Assumption Agreement
substantially in the form of Exhibit D hereto pursuant to which a
Subsidiary shall join this Agreement and other Loan Documents, as amended,
supplemented or otherwise modified from time to time.
"Law": any law (including common law), constitution, statute, treaty,
regulation, rule, ordinance, opinion, release, ruling, order, injunction,
writ, decree or award of any Governmental Authority.
"Lending Office": the lending office (s) of the Banks set forth on
Schedule I hereto or notice of which has been given to the Agent in
accordance with the provisions of this Agreement.
"Letter of Credit": has the meaning assigned to that term in
subsection 2.8(a).
"Letter of Credit Coverage Requirement": with respect to each Letter
of Credit at any time, 102% of the maximum amount available to be drawn
thereunder at such time (determined without regard to whether any
conditions to drawing could be met at such time).
"Letter of Credit Fee": has the meaning assigned to that term in
subsection 2.8(b).
"Letter of Credit Fee Rate": on any date, the percentage per annum set
forth below opposite the Leverage Ratio shown on the last Compliance
Certificate delivered by the Borrowers to the Agent pursuant to subsection
5.2(b) prior to such date:
<TABLE>
<CAPTION>
<S> <C> <C>
Level Leverage Ratio Letter of Credit Fee Rate
I Less than or equal to 0.475%
0.35 to 1.0
II Less than or equal to 0.45 0.575%
to 1.0 but greater than
0.35 to 1.0
III Greater than 0.45 to 1.0 0.80%
</TABLE>
; provided, however, that (a) adjustments, if any, to the Letter of Credit Fee
Rate resulting from a change in the Leverage Ratio shall be effective five
Business Days after the Agent has received a Compliance Certificate, (b) in the
event that no Compliance Certificate has been delivered for a fiscal quarter
prior to the last date on which it can be delivered without violation of
subsection 5.2(b), the Letter of Credit Fee Rate from such date until such
Compliance Certificate is actually delivered shall be that applicable under
Level III, (c) in the event that the actual Leverage Ratio for any fiscal
quarter is subsequently determined to be greater than that set forth in the
Compliance Certificate for such fiscal quarter, the Letter of Credit Fee Rate
shall be recalculated for the applicable period based upon such actual Leverage
Ratio and (d) anything in this definition to the contrary notwithstanding, until
receipt by the Agent of the Compliance Certificate for the fiscal quarter ending
September 30, 2000, the Letter of Credit Fee Rate shall be that applicable under
Level III. Any additional fees on the Letters of Credit resulting from the
operation of clause (c) above shall be payable by the Borrowers jointly and
severally to the Banks within five (5) days after receipt of a written demand
therefor from the Agent. "Letter of Credit Obligations": at any time, an amount
equal to the sum of (a) 100% of the maximum amount available to be drawn under
all Letters of Credit outstanding at such time (determined without regard to
whether any conditions to drawing could be met at such time) and (b) the
aggregate amount of drawings under Letters of Credit which have not then been
reimbursed pursuant to subsection 2.8(d)(i).
"Letter of Credit Participant": in respect of each Letter of Credit, each
Five Year Bank (other than the Issuing Bank) in its capacity as the holder of a
participating interest in such Letter of Credit.
"Leverage Ratio": on any date (a) Total Debt on such date to (b) the sum of
(i) Total Debt on such date and (ii) shareholders' equity on such date for the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"LIBOR Loan": any Loan bearing interest at a rate determined by reference
to the LIBOR Rate.
"LIBOR Rate":
(a) with respect to Loans in Dollars comprising any Tranche to which the
LIBOR Rate applies for any Interest Period, the interest rate per annum
determined by the Agent by dividing (the resulting quotient rounded upward to
the nearest 1/100th of 1% per annum) (i) the rate of interest determined by the
Agent in accordance with its usual procedures (which determination shall be
conclusive absent manifest error) to be the London interbank offered rate of
interest per annum appearing on Telerate display page 3750 or such other display
page on the Telerate System as may replace such page evidencing quotes by the
British Bankers' Association (or appropriate successor or, if the British
Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Agent) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the first day of such Interest
Period for an amount comparable to such Tranche and having a borrowing date and
a maturity comparable to such Interest Period by (ii) a number equal to 1.00
minus the Eurocurrency Rate Reserve Percentage. Such LIBOR Rate may also be
expressed by the following formula:
Telerate page 3750 quoted by British Bankers'
LIBOR Rate = Association or appropriate successor
1.00 - Eurocurrency Rate Reserve Percentage
The LIBOR Rate shall be adjusted with respect to any LIBOR Loan in Dollars
outstanding on the effective date of any change in the Eurocurrency Rate Reserve
Percentage as of such effective date. The Agent shall give prompt notice to the
Borrowers of the LIBOR Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest error.
(b) with respect to Loans in an Optional Currency comprising any Tranche to
which the LIBOR Rate applies for any Interest Period, the interest rate per
annum determined by Agent by dividing (the resulting quotient rounded upward to
the nearest 1/100th of 1% per annum) (i) the rate of interest per annum
determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the rate of
interest per annum for deposits in the relevant Optional Currency which appears
on the relevant Telerate Page (or, if no such quotation is available on such
Telerate Page, on the appropriate Reuters Screen) at approximately 9:00 a.m.,
Philadelphia time, two (2) Business Days prior to the first day of such Interest
Period for delivery on the first day of such Interest Period for a period, and
in an amount, comparable to such Interest Period and principal amount of such
Tranche ("Optional Currency Euro Rate") by (ii) a number equal to 1.00 minus the
Eurocurrency Rate Reserve Percentage. Such LIBOR Rate may also be expressed by
the following formula:
LIBOR Rate = Optional Currency Euro Rate
1 - Eurocurrency Rate Reserve Percentage
The LIBOR Rate shall be adjusted with respect to any LIBOR Loan in an Optional
Currency outstanding on the effective date of any change in the Eurocurrency
Rate Reserve Percentage as of such effective date. The Agent shall give prompt
notice to the Borrowers of the LIBOR Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error. The LIBOR Rate for any Loans in an Optional Currency shall be based upon
the LIBOR Rate for the currency in which such Loans are requested.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Notes, the Joinder and Assumption
Agreements and the Applications, as the same may be supplemented or amended from
time to time in accordance herewith or therewith, and Loan Document shall mean
any of the Loan Documents.
"Loans": the collective reference to the 364 Day Loans, the Five Year Loans
and the Swing Line Loans.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole, (b) the ability of the Company and the other
Borrowers to perform their obligations under this Agreement, the Notes or any
other Loan Document or (c) the validity or enforceability of this Agreement, the
Notes or any of the other Loan Documents or the rights or remedies of the Agent
or the Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Law, including, without limitation, asbestos, polychlorinated
biphynels, and ureaformaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"New Provisions": has the meaning assigned to such term in Section 5.11.
"Note Purchase Agreement": means that certain Note Purchase Agreement,
dated as of April 8, 1999, between the Company, certain other obligors party
thereto and the purchasers party thereto, as amended, supplemented or otherwise
modified from time to time.
"Notes": means the Five Year Notes, the 364 Day Notes and the Swing Line
Note.
"Notice of Borrowing": with respect to a Loan of any Type, a notice from
the Borrowers in respect of such Loan, containing the information in respect of
such Loan and delivered to the Agent, in the manner and by the time specified
pursuant to the terms hereof. A form of the Notice of Borrowing for Loans is
attached hereto as Exhibit C.
"Optional Currency": each of the following currencies: French Francs,
Deutsche Marks, British Pounds Sterling, Euros, and any other currency approved
by Agent pursuant to subsection 2.6(d).
"Original Currency": has the meaning assigned to such term in Section 2.19.
"Other Currency": has the meaning assigned to such term in Section 2.19.
"Other Taxes": has the meaning assigned to such term in subsection 2.17(b).
"Participant": has the meaning assigned to such term in subsection 9.6(f).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Permitted Acquisition": an acquisition by a Borrower of the stock or
assets of a Person, provided that: at the time that any definitive agreement is
entered into in respect of such acquisition, no Default or Event of Default
shall exist or would exist if such acquisition were consummated on such date;
provided further, no less than five (5) days prior to consummating any such
acquisition in which the aggregate consideration paid by the Borrowers
(including payments under non-compete arrangements and assumption of debt)
exceeds $20,000,000, the Borrowers shall deliver to the Agent a certificate of a
Responsible Officer certifying to the Agent and the Banks that no such Default
or Event of Default exists or would exist if such acquisition were consummated
on such date.
"Permitted Liens": (a) any Liens for current taxes, assessments and other
governmental charges not yet due and payable or being contested in good faith by
the Company or any Subsidiary by appropriate proceedings and for which adequate
reserves have been established by the Company and its Subsidiaries on a
consolidated basis as reflected in its financial statements;
(b) any mechanic's, landlord's, materialman's, carrier's, warehousemen's or
similar Liens for sums not yet due or being contested in good faith by the
Company or any Subsidiary by appropriate proceedings and for which adequate
reserves have been established by the Company and its Subsidiaries on a
consolidated basis as reflected in its financial statements;
(c) easements, rights-of-way, restrictions and other similar encumbrances
on the real property or fixtures of the Company or any Subsidiary incurred in
the ordinary course of business which individually or in the aggregate are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of the Company or any Subsidiary;
(d) Liens (other than Liens imposed on any property of the Borrowers or any
ERISA Affiliate pursuant to ERISA or Section 412 of the Code) incurred or
deposits made in the ordinary course of business, including Liens in connection
with workers' compensation, unemployment insurance and other types of social
security and Liens to secure performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases that are not Capital Leases, performance
bonds, sales contracts and other similar obligations, in each case, not incurred
in connection with the obtaining of credit or the payment of a deferred purchase
price, and which do not, in the aggregate, result in a Material Adverse Effect;
(e) Liens on tangible property (or any improvement thereon) acquired or
constructed by the Company or any Subsidiary after the Closing Date to secure
Indebtedness of the Company or such Subsidiary incurred in connection with such
acquisition or construction; provided that:
(i) no such Lien shall extend to or cover any property other than the
property (or improvement thereon) being acquired or constructed;
(ii) the principal amount of the Indebtedness secured by any such
Lien, together with the aggregate principal amount of all other
Indebtedness secured by Liens on such property, shall not exceed the lesser
of (A) an amount equal to the fair market value (as determined in good
faith by the Board of Directors of the Company) of such property so
acquired or constructed and (B) the cost to the Company or such Subsidiary
of such property (or improvement thereon) so acquired or constructed, and;
(iii) such Lien shall be created concurrently with or within 120 days
after such acquisition or the substantial completion of such construction;
(f) Liens existing on real property or equipment of a Subsidiary which Lien
existed at the time of the acquisition of such Subsidiary and, for a period of
ninety (90) days from the date of acquisition of such Subsidiary, Liens upon any
other personal property of such Subsidiary;
(g) Liens existing upon the date hereof as set forth in Schedule II hereto;
(h) judgment and other similar Liens arising in connection with court
proceedings, in existence less than thirty (30) days after entry thereof or with
respect to which execution has been stayed or the payment of which is covered in
full (subject to a customary deductible) by insurance maintained with
responsible insurance companies and the claims secured thereby are being
actively contested in good faith and by appropriate legal proceedings;
(i) Liens in favor of any governmental agency or authority for the purpose
of financing, through industrial revenue bonds or notes, the construction,
acquisition or purchase of facilities, or machinery, equipment or other assets,
or of any air, water or solid waste pollution control facilities to be used in
connection with any such property;
(j) other Liens incidental to the conduct of the Borrowers' or their
Subsidiaries' businesses conducted in the ordinary course (including without
limitation, Liens on goods securing trade letters of credit issued in respect of
importation of goods in the ordinary course of business) or the ownership of any
Borrower's or its Subsidiaries' property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or credit
and which do not in the aggregate materially detract from the value of such
Borrower's or such Subsidiary's property or assets or materially impair the use
thereof in its business;
(k) Liens in favor of the Company or another Borrower on the assets of any
of its Subsidiaries; and
(l) Liens on assets of Foreign Subsidiaries securing Indebtedness in an
aggregate amount not to exceed at any time $15,000,000.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Preferred Stock": means, in respect of any corporation, shares of Capital
Stock of such corporation that are entitled to preference or priority over any
other shares of the Capital Stock of such corporation in respect of payment of
dividends or distribution of assets upon liquidation.
"Prime Rate": the rate of interest per annum publicly announced from time
to time by PNC Bank, National Association as its prime rate in effect at its
principal office in Philadelphia, Pennsylvania; each change in the Prime Rate
shall be effective on the date such change is publicly announced as effective.
"Principal Office": the main banking office of the Agent in Philadelphia,
Pennsylvania.
"Priority Debt": at any time, without duplication (a) all Indebtedness and
Preferred Stock of Subsidiaries (other than Indebtedness of any Subsidiary owed
to, or Preferred Stock of any Subsidiary held by, the Company or any
Wholly-Owned Subsidiary, and Indebtedness of any Subsidiary which is a
Borrower), plus (b) all Indebtedness of a Subsidiary secured by a Lien permitted
under clause (g) of the definition of Permitted Lien.
"Properties": the collective reference to the facilities and properties
owned, leased or operated by the Company or any of its Subsidiaries.
"Publication 500": has the meaning assigned to such term in subsection
2.8(f).
"Purchase Money Security Interest": Liens upon tangible personal property
securing loans to the Borrowers or deferred payments by the Borrowers for the
purchase of such tangible personal property, in each case securing amounts which
do not exceed the purchase price of the property subject to such security
interests.
"Purchasing Bank": has the meaning assigned to such term in subsection
9.6(b).
"Ratable Share": (a) with respect to 364 Day Loans, such Bank's 364 Day
Commitment Percentage and (b) with respect to Five Year Loans, such Bank's Five
Year Commitment Percentage.
"Redeemable": with respect to the preferred stock of any Person, each share
of such Person's preferred stock that is: (a) redeemable, payable or required to
be purchased or otherwise retired or extinguished or convertible into debt of
such Person (i) at a fixed or determinable date, whether by operation of sinking
fund or otherwise, (ii) at the option of any Person other than such Person, or
(iii) upon the occurrence of a condition not solely within the control of such
Person; or (b) convertible into other Redeemable preferred stock of such Person.
"Reference Currency": has the meaning assigned to such term in the
definition of Equivalent Amount.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X": Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reimbursement Obligation": in respect of each Letter of Credit, the
obligation of the Borrowers to reimburse the Issuing Bank for all drawings made
thereunder in accordance with subsection 2.8(d)(i) and the Application related
to such Letter of Credit for amounts drawn under such Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Replacement Bank": has the meaning assigned to such term in subsection
2.14(d)(ii).
"Reportable Event": any of the events set forth in Section 4043(c)(1), (2),
(4), (5), (6), (10) and (13) of ERISA.
"Required Banks": at any time, those Banks which are then in compliance
with their obligations hereunder holding (a) 51% of the Total Commitments (other
than the Swing Line Commitment) of such Banks or (b) in the event the Total
Commitments shall have expired or been terminated, 51% of the Total Exposure of
such Banks.
"Requirement of Law": as to any Person, the Articles or Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": with respect to any Borrower, the chief executive
officer, president, treasurer, controller or chief financial officer of such
Borrower. Unless otherwise qualified, all references to a "Responsible Officer"
in this Agreement shall refer to a Responsible Officer of the Company.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
be reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.
"Swing Line Bank": PNC Bank, National Association, and any successor
thereto, or any other Bank to which the Swing Line Commitment is assigned.
"Swing Line Commitment": the obligation of the Swing Line Bank to make
Swing Line Loans in an aggregate amount at any one time outstanding not to
exceed the amount set forth opposite the Swing Line Bank's name on Schedule I
hereto under the caption "Swing Line Commitment", as the same may be changed
from time to time in accordance with the provisions of this Agreement and/or any
applicable Assignment and Acceptance.
"Swing Line Conversion Date": has the meaning assigned to such term in
subsection 2.1(d)(iv).
"Swing Line Loan": has the meaning assigned to such term in subsection
2.1(d)(i).
"Swing Line Note": has the meaning assigned to such term in subsection
2.1(d)(iii).
"Swing Line Repayment Date": has the meaning assigned to such term in
subsection 2.1(d)(ii).
"Taxes": has the meaning assigned to such term in Section 2.17.
"Total Commitments": the 364 Day Commitments, the Five Year Commitments and
the Swing Line Commitment.
"Total Commitment Percentage": as to any Bank at any time, the percentage
which such Bank's 364 Day Commitment and Five Year Commitment then constitutes
of the aggregate 364 Day Commitments and Five Year Commitments at such time (or,
at any time after the Total Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Total Exposure bears to the aggregate
amount of the Total Exposure of all the Banks at such time).
"Total Debt": at any date, without duplication, the aggregate of all
Indebtedness of the Company and its Subsidiaries determined on a consolidated
basis (including the current portion thereof and the undrawn stated amount of
any Letters of Credit then outstanding), other than (but only to the extent that
the following would not be included on a consolidated balance sheet of the
Company and its Subsidiaries at such date): (a) earn-outs or similar
obligations, (b) Indebtedness described in clauses (g) and (h) of the definition
of "Indebtedness", and (c) Guaranty Obligations in respect of the Indebtedness
described in clauses (a) and (b) above.
"Total Exposure": as to any Bank at any date, an amount equal to the sum of
its (a) Five Year Exposure and (b) the aggregate Dollar Equivalent amount of all
364 Day Loans made by such Bank then outstanding.
"Tranche": specified portions of Loans outstanding as follows: (a) any
Loans to which a LIBOR Rate applies which become subject to the same LIBOR Rate
under the same Notice of Borrowing and which have the same Interest Period,
which are denominated either in Dollars or in the same Optional Currency and
under the same Facility shall constitute one Tranche, and (b) all Loans under
the same Facility to which the Base Rate applies shall constitute one Tranche.
"Type": when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall include the LIBOR Rate and the Base Rate.
"Voting Stock": Capital Stock of any class or classes of a Person the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the directors (or Persons performing similar functions).
"Wholly-Owned Subsidiary": at any time, any Subsidiary one hundred percent
(100%) of all of the equity securities (except directors' qualifying shares) and
Voting Stock of which are owned by any one or more of the Company and its other
Wholly-Owned Subsidiaries at such time.
"Year 2000 Problem": has the meaning assigned to such term in Section 3.20.
"364 Day Banks": at any time, the Bank or Banks which at that time are
obligated, subject to the terms of this Agreement, to make 364 Day Loans (or, at
any time after the 364 Day Commitments shall have expired or been terminated,
any Bank that has 364 Day Loans then outstanding).
"364 Day Commitment": as to any 364 Day Bank, the obligation of such Bank
to make 364 Day Loans in an aggregate Dollar Equivalent amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's name on
Schedule I hereto under the caption "364 Day Commitment," as the same may be
changed from time to time in accordance with the provisions of this Agreement
and/or any applicable Assignment and Acceptance.
"364 Day Commitment Percentage": as to any 364 Day Bank at any time, the
percentage which such Bank's 364 Day Commitment constitutes of the aggregate 364
Day Commitments at such time (or at any time after the 364 Day Commitments shall
have expired or terminated, the percentage which the aggregate Dollar Equivalent
amount of such Bank's 364 Day Loans then outstanding bears to the aggregate
Dollar Equivalent amount of all 364 Day Loans then outstanding).
"364 Day Commitment Period": the period from and including the date hereof
to but not including the 364 Day Termination Date.
"364 Day Facility": the revolving credit facility pursuant to which the 364
Day Banks have committed to make 364 Day Loans.
"364 Day Loans": has the meaning assigned to such term in
subsection 2.1(a).
"364 Day Notes": has the meaning assigned to such term in Section 2.3, as
the same may be amended, supplemented or otherwise modified from time to time.
"364 Day Termination Date": with respect to the 364 Day Facility, the
earlier of (a) July 24, 2001 or such later date to which the 364 Day Termination
Date shall have been extended pursuant to subsection 2.14(d) hereof and (b) the
date the 364 Day Commitments are terminated as provided herein.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the Notes, the other Loan Documents
or any certificate or other document made or delivered pursuant hereto or
thereto.
(b) As used herein and in the Notes and the other Loan Documents, and in
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined in this Agreement shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. LOANS AND TERMS OF COMMITMENTS
2.1 The Loans.
(a) 364 Day Facility. Subject to the terms and conditions hereof, each 364
Day Bank severally agrees to make revolving credit loans under the 364 Day
Facility in either Dollars or one or more Optional Currencies (the "364 Day
Loans") to the Borrowers on a joint and several basis from time to time during
the 364 Day Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed the amount of such Bank's 364 Day Commitment;
provided, that (i) after giving effect to each such 364 Day Loan the aggregate
Dollar Equivalent amount of 364 Day Loans from such Bank shall not exceed such
Bank's 364 Day Commitment, and (ii) no 364 Day Loan to which the Base Rate
applies shall be made in an Optional Currency. The 364 Day Commitments may be
terminated or reduced from time to time pursuant to Section 2.14. Within the
foregoing limits, the Borrowers may during such Commitment Period borrow, repay
and reborrow under the 364 Day Commitments, subject to and in accordance with
the terms and limitations hereof.
(b) Five Year Facility. Subject to the terms and conditions hereof, each
Five Year Bank severally agrees to make revolving credit loans under the Five
Year Facility in either Dollars or one or more Optional Currencies (the "Five
Year Loans") to the Borrowers on a joint and several basis from time to time
during the Five Year Commitment Period in an aggregate principal amount at any
one time outstanding not to exceed the amount of such Bank's Five Year
Commitment; provided, that (i) after giving effect to each such Five Year Loan,
the aggregate Dollar Equivalent amount of outstanding Five Year Loans made by
such Bank shall not exceed (x) such Bank's Five Year Commitment minus (y) the
sum of such Bank's Ratable Share (based on its Five Year Commitment Percentage)
of the amount of Swing Line Loans and Letter of Credit Obligations then
outstanding, and (ii) no Five Year Loan to which the Base Rate applies shall be
made in an Optional Currency. The Five Year Commitments may be terminated or
reduced from time to time pursuant to Section 2.14. Within the foregoing limits,
the Borrowers may during the Five Year Commitment Period borrow, repay and
reborrow under the Five Year Commitments, subject to and in accordance with the
terms and limitations hereof.
(c) Type of Loans. The 364 Day Loans and the Five Year Loans may from time
to time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a combination thereof,
as determined by the Borrowers and notified to the Agent in accordance with
Sections 2.4 and 2.5; provided, that no Loan shall be made as a LIBOR Loan after
the date that is one month prior to the 364 Day Termination Date or the Five
Year Termination Date, as the case may be.
(d) Swing Line Loans.(i) Subject to the terms and conditions hereof, the
Swing Line Bank may in its discretion make swing line loans in Dollars (the
"Swing Line Loans") to the Borrowers from time to time during the Five Year
Commitment Period in an aggregate outstanding principal amount up to the amount
of the Swing Line Commitment for periods not to exceed seven days as requested
by the Borrowers and agreed to by the Swing Line Bank; provided, that, no Swing
Line Loan shall be made if, after giving effect to the making of such Swing Line
Loan and the simultaneous application of the proceeds thereof, (x) the aggregate
amount of all outstanding Swing Line Loans plus the aggregate Dollar Equivalent
amount of all outstanding Five Year Loans plus the aggregate amount of the
Letter of Credit Obligations then outstanding, would exceed the aggregate amount
of the Five Year Commitments of all of the Banks or (y) the aggregate Dollar
Equivalent amount of all Five Year Loans made by a Bank plus such Bank's Ratable
Share (based on its Five Year Commitment Percentage) of the amount of Swing Line
Loans and Letter of Credit Obligations then outstanding would exceed its Five
Year Commitment. Within the foregoing limits, the Borrowers may during the Five
Year Commitment Period borrow, repay and reborrow under the Swing Line
Commitment, subject to and in accordance with the terms and limitations hereof.
The interest rate for a Swing Line Loan shall be the rate that is mutually
agreed by the Borrowers and the Swing Line Bank at the time such Swing Line Loan
is made or, absent such an agreement, at the Base Rate.
(ii) The Borrowers may request a Swing Line Loan to be made on any Business
Day. Each request for a Swing Line Loan shall be in the form of a Notice of
Borrowing (or a request by telephone immediately confirmed in writing, it being
understood that the Swing Line Bank may rely on the authority of any individual
making such telephonic request without the necessity of receipt of such written
confirmation) and received by the Agent not later than twelve o'clock noon
(12:00) (Philadelphia time) on the Business Day such Swing Line Loan is to be
made, specifying in each case (i) the amount to be borrowed, (ii) the requested
borrowing date, and (iii) the date such Swing Line Loan is to be repaid, if
applicable (the "Swing Line Repayment Date"). The request for such Swing Line
Loan shall be irrevocable. Provided that all applicable conditions precedent
contained herein have been satisfied, the Swing Line Bank shall, not later than
4:00 p.m., Philadelphia time, on the date specified in the Borrowers' request
for such Swing Line Loan, make such Swing Line Loan by crediting the Borrowers'
deposit account with the Swing Line Bank or as otherwise directed by the
Borrowers.
(iii) The obligation of the Borrowers to repay the Swing Line Loans shall
be evidenced by a promissory note of the Borrowers dated the date hereof,
payable to the order of the Swing Line Bank in the principal amount of the Swing
Line Commitment and substantially in the form of Exhibit A-3 (as amended,
supplemented or otherwise modified from time to time, the "Swing Line Note").
(iv) Swing Line Loans shall be repaid on the earlier of (1) the Five Year
Termination Date, (2) the Swing Line Repayment Date for such Swing Line Loan or
(3) the seventh day after the date such Swing Line Loan was made (any such date
being the "Swing Line Conversion Date"). Unless the Borrowers shall have
notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line
Conversion Date that the Borrowers intend to repay such Swing Line Loan with
funds other than the proceeds of a Five Year Loan, the Borrowers shall be deemed
to have given notice to the Agent requesting the Five Year Banks to make Five
Year Loans which shall earn interest at the Base Rate in effect on the Swing
Line Conversion Date in an aggregate amount equal to the amount of such Swing
Line Loan plus interest thereon, and subject to satisfaction or waiver of the
conditions specified in Section 4.2, the Five Year Banks shall, on the Swing
Line Conversion Date, make Five Year Loans, which shall earn interest at the
Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan
plus interest thereon, the proceeds of which shall be applied directly by the
Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued
interest thereon; and provided, further, that if for any reason the proceeds of
such Five Year Loans are not received by the Swing Line Bank on the Swing Line
Conversion Date in an aggregate amount equal to the amount of such Swing Line
Loan plus accrued interest, the Borrowers shall reimburse the Swing Line Bank on
the day immediately following the Swing Line Conversion Date, in same day funds,
in an amount equal to the excess of the amount of such Swing Line Loan over the
aggregate amount of such Five Year Loans, if any, received plus accrued interest
thereon.
(v) In the event that the Borrowers shall fail to repay the Swing Line Bank
as provided in this Section 2.1(d) in an amount equal to the amount required
under Section 2.1(d), the Agent shall promptly notify each Five Year Bank of the
unpaid amount of such Swing Line Loan and of such Bank's respective
participation therein in an amount equal to such Bank's pro rata share of such
Swing Line Loan (based on its Five Year Commitment Percentage). Each Five Year
Bank shall make available to the Agent for payment to the Swing Line Bank an
amount equal to its respective participation therein, in same day funds, at the
office of the Agent specified in such notice, not later than 11:00 a.m.,
Philadelphia time, on the Business Day after the date the Agent notifies each
Bank. In the event that any Five Year Bank fails to make available to the Agent
the amount of such Bank's participation in such unpaid amount as provided
herein, the Swing Line Bank shall be entitled to recover such amount on demand
from such Bank together with interest thereon at a rate per annum equal to the
Federal Funds Effective Rate for each day during the period between the Swing
Line Conversion Date and the date on which such Bank makes available its
participation in such unpaid amount. The failure of any Bank to make available
to the Agent its pro rata share of any such unpaid amount shall not relieve any
other Bank of its obligations hereunder to make available to the Agent its pro
rata share of such unpaid amount on the Swing Line Conversion Date. The Agent
shall distribute to each Bank which has paid all amounts payable by it under
this Section 2.1(d) with respect to the unpaid amount of any Swing Line Loan,
such Bank's pro rata share of all payments received by the Agent from the
Borrowers in repayment of such Swing Line Loan when such payments are received.
Notwithstanding anything to the contrary herein, each Bank which has paid all
amounts payable by it under this Section 2.1(d) shall have a direct right to
repayment of such amounts from the Borrowers subject to the procedures for
repaying Banks set forth in this Section 2.1(d) and the provisions of Section
9.8.
(vi) In the event the Five Year Commitments are terminated in accordance
with the terms hereof, the Swing Line Commitment shall also be terminated
automatically. In the event the Borrowers reduce the Five Year Commitment to
less than the Swing Line Commitment, the Swing Line Commitment shall immediately
be reduced to an amount equal to the Five Year Commitment. In the event the
Borrowers reduce the Five Year Commitment to less than the outstanding principal
amount of the Swing Line Loans, the Borrowers shall immediately repay the amount
by which the outstanding Swing Line Loans exceeds the Swing Line Commitment as
so reduced plus accrued interest thereon.
(vii) At no time shall there be more than two outstanding Swing Line Loans.
Each Swing Line Loan shall be in an original principal amount of $100,000 or a
whole multiple thereof.
(viii) The Borrowers shall have the right at any time and from time to time
to prepay the Swing Line Loans, in whole or in part, without premium or penalty
(but in any event subject to Section 2.18), upon prior written, facsimile or
telephonic notice to the Swing Line Bank given no later than 1:00 p.m.,
Philadelphia time, on the date of any proposed prepayment. Each notice of
prepayment shall specify the Swing Line Loan to be prepaid and the amount to be
prepaid, shall be irrevocable and shall commit the Borrowers to prepay such
amount on such date, with accrued interest thereon and any amounts owed under
Section 2.18 hereof.
2.2 Nature of Banks' Obligations with Respect to Loans. Each Bank shall be
obligated to participate in each request for Loans pursuant to Section 2.4 in
accordance with its Ratable Share with respect to the applicable Facility. The
obligations of each Bank hereunder are several. The failure of any Bank to
perform its obligations hereunder shall not affect the obligations of the
Borrowers to any other party nor shall any other party be liable for the failure
of any Bank to perform its obligations hereunder. The Banks shall have no
obligation to make 364 Day Loans hereunder on or after the 364 Day Termination
Date or to make Five Year Loans or Swing Line Loans on or after the Five Year
Termination Date.
2.3 Notes.
(a) The 364 Day Loans made by each 364 Day Bank shall be evidenced by a
promissory note of the Borrowers, substantially in the form of Exhibit A-1, with
appropriate insertions as to payee, date and principal amount (a "364 Day
Note"), payable to the order of such Bank and in a principal amount equal to the
amount of the initial 364 Day Commitment of such Bank; provided, however, that
the principal amount of each 364 Day Loan made in an Optional Currency shall be
paid by the Borrowers in such Optional Currency. Each 364 Day Bank is hereby
authorized to record the date, currency, Type and amount of each 364 Day Loan
made by such Bank, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of LIBOR Loans, the length of
each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its 364 Day Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided, that the failure of any 364 Day Bank to make such recordation (or any
error in such recordation) shall not affect the obligations of the Borrowers
hereunder or under such 364 Day Note. Each 364 Day Note shall (a) be dated the
Closing Date, (b) be stated to mature on the 364 Day Termination Date and (c)
provide for the payment of interest in accordance with Sections 2.9 and 2.10.
(b) The Five Year Loans made by each Five Year Bank shall be evidenced by a
promissory note of the Borrowers, substantially in the form of Exhibit A-2, with
appropriate insertions as to payee, date and principal amount (a "Five Year
Note"), payable to the order of such Bank and in a principal amount equal to the
amount of the initial Five Year Commitment of such Bank; provided, however, that
the principal amount of each Five Year Loan made in an Optional Currency shall
be paid by the Borrowers in such Optional Currency. Each Five Year Bank is
hereby authorized to record the date, currency, Type and amount of each Five
Year Loan made by such Bank, each continuation thereof, each conversion of all
or a portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of LIBOR Loans, the length of
each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Five Year Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided, that the failure of any Five Year Bank to make such recordation (or
any error in such recordation) shall not affect the obligations of the Borrowers
hereunder or under such Five Year Note. Each Five Year Note shall (a) be dated
the Closing Date, (b) be stated to mature on the Five Year Termination Date and
(c) provide for the payment of interest in accordance with Sections 2.9 and
2.10.
(c) The Swing Line Loans shall be evidenced by the Swing Line Note, payable
to the order of the Swing Line Bank and in a principal amount equal to the
amount of the Swing Line Commitment. The Swing Line Bank is hereby authorized to
record the date, Type and amount of each Swing Line Loan made by such Bank and
the date and amount of each payment or prepayment of principal thereof on the
schedule annexed to and constituting a part of the Swing Line Note, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded, provided, that the failure of the Swing Line Bank to
make such recordation (or any error in such recordation) shall not affect the
obligations of the Borrowers hereunder or under the Swing Line Note. The Swing
Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the
Five Year Termination Date and (c) provide for the payment of interest in
accordance with Sections 2.9 and 2.10.
2.4 Procedure for 364 Day Loans and Five Year Loans.
(a) Except as otherwise provided herein, the Borrowers may from time to
time prior to the applicable Termination Date request the Banks to make 364 Day
Loans and/or Five Year Loans by delivering to the Agent, not later than 11:00
a.m., Philadelphia time, (i) three (3) Business Days prior to the proposed
Borrowing Date with respect to the making of Loans in Dollars to which the LIBOR
Rate applies and four (4) Business Days prior to the proposed Borrowing Date
with respect to the making of Loans in an Optional Currency and (ii) the
Business Day of the proposed Borrowing Date with respect to the making of a Loan
to which the Base Rate applies, of a duly completed Notice of Borrowing or a
request by telephone immediately confirmed in writing, it being understood that
the Agent may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation. Each
Notice of Borrowing shall be irrevocable and shall specify (i) the proposed
Borrowing Date; (ii) the aggregate amount of the proposed 364 Day Loans and Five
Year Loans (expressed in the currency in which such Loans shall be funded)
comprising each Tranche, the Dollar Equivalent amount of which shall be in
integral multiples of $100,000 and not less than $3,000,000 or, if less, the
maximum amount under the 364 Day Commitment or the Five Year Commitment, as the
case may be; (iii) whether the LIBOR Rate or Base Rate shall apply to the
proposed Loans comprising the applicable Tranche; (iv) the currency in which
such Loans shall be funded if the Borrowers are electing the LIBOR Rate, (v) in
the case of a Tranche to which the LIBOR Rate applies, the Interest Period for
the proposed Loans comprising such Tranche, and (vi) the amount of such Loans
requested to be made for the account of one or more Foreign Borrowers with the
name of each such Foreign Borrower.
(b) The Agent shall, promptly after receipt by it of a Notice of Borrowing
pursuant to this Section 2.4, notify the applicable Banks of its receipt of such
Notice of Borrowing specifying: (i) the proposed Borrowing Date and the time and
method of disbursement of the Loans requested thereby; (ii) the amount,
currency, Facility, and Type of each such Loan and the applicable Interest
Period (if any); and (iii) the apportionment among the Banks of such Loans as
determined by the Agent in accordance with Section 2.2. Subject to the terms and
conditions hereof, each applicable Bank shall remit the principal amount of each
Loan in the requested currency to the Agent at the Principal Office (or, with
respect to Loans in an Optional Currency, such other Lending Office as the Agent
shall from time to time notify such Bank) prior to 2:00 p.m., Philadelphia time
(or, with respect to Loans in an Optional Currency, such other time as the Agent
shall notify the Banks), on the Borrowing Date requested by the Borrowers in
funds immediately available to the Agent. Such borrowing will then be made
available to the Borrowers by the Agent crediting the account of the Company on
the books of the office specified in subsection 9.2 (or, with respect to Loans
in an Optional Currency, the applicable Lending Office of the Agent) with the
aggregate of the amounts made available to the Agent by the Banks and in like
funds as received by the Agent. Unless the Agent shall have received notice from
a Bank prior to the date of any borrowing that such Bank will not make available
to the Agent such Bank's portion of such borrowing, the Agent may assume that
such Bank has made such portion available in accordance with this
subsection 2.4(b) and the Agent may, in reliance upon such assumption, make
available to the Borrowers on such date a corresponding amount. If and to the
extent that any Bank shall not have made such Bank's pro rata portion of such
borrowing available to the Agent, such Bank and the Borrowers (without prejudice
to the Borrowers' rights against such Bank) severally agree to repay to the
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrowers until the date such amount is repaid to the Agent at (i) in the case
of the Borrowers, the interest rate applicable at the time to the Loans
comprising such borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate, provided, that, if such Bank shall not pay such amount within
three Business Days of such Borrowing Date, the interest rate on such overdue
amount shall, at the expiration of such three Business Day period, be the rate
per annum applicable to Base Rate Loans. If such Bank shall repay to the Agent
such corresponding amount, such amount shall constitute such Bank's Loan as part
of such borrowing for purposes of this Agreement.
(c) If in a Notice of Borrowing no election as to the Type of Loan is
specified in any such notice, then the requested Loan shall be a Base Rate Loan,
and if no election as to the Facility under which the Loan is to be made is
specified, then the requested Loan shall be a Five Year Loan. If a LIBOR Loan is
requested but no Interest Period with respect to such Loan is specified in any
such notice, then the Borrowers shall be deemed to have selected an Interest
Period of one month's duration.
2.5 Conversion and Continuation Options. The Borrowers shall have the right
at any time upon prior irrevocable notice to the Agent (i) not later than
11:00 noon, Philadelphia time, one Business Day prior to conversion, to convert
any LIBOR Loan to a Base Rate Loan, (ii) not later than 11:00 a.m., Philadelphia
time, three Business Days prior to conversion or continuation, to convert any
Base Rate Loan into a LIBOR Loan or to continue any LIBOR Loan as a LIBOR Loan
for any additional Interest Period, (iii) not later than 11:00 a.m. Philadelphia
time, four Business Days prior to continuation, to continue any LIBOR Loan
denominated in an Optional Currency as a LIBOR Loan in such currency for an
additional period and (iv) not later than 11:00 a.m. Philadelphia time, four
Business Days prior to conversion to convert the Interest Period with respect to
any Loan in an Optional Currency to another permissible Interest Period, subject
in each case to the following:
(a) a LIBOR Loan may not be converted at a time other than the last day of
the Interest Period applicable thereto;
(b) any portion of a Loan maturing or required to be repaid in less than
one month may not be converted into or continued as a LIBOR Loan;
(c) no LIBOR Loan may be continued as such and no Base Rate Loan may be
converted to a LIBOR Loan when any Default has occurred and is continuing and
the Agent or the Required Banks have determined that such a continuation is not
appropriate;
(d) any portion of a LIBOR Loan that cannot be converted into or continued
as a LIBOR Loan by reason of subsection 2.5(b) or 2.5(c) or as to which the
Borrowers have failed to give notice of conversion or continuation automatically
shall in the case of a LIBOR Loan denominated in an Optional Currency be prepaid
on the last day of the Interest period in effect for such Loan (subject to the
provisions of subsection 2.12(c)), or in the case of any other LIBOR Loan be
converted to a Base Rate Loan on the last day of the Interest Period in effect
for such Loan;
(e) no LIBOR Loan denominated in an Optional Currency may be converted into
a Base Rate Loan or converted into a LIBOR Loan denominated in another Optional
Currency;
(f) the provisions of subsection 2.6(c) limiting under certain
circumstances the continuation of LIBOR Loans denominated in an Optional
Currency; and
(g) no Swing Line Loan may be a LIBOR Loan.
Each request by the Borrowers to convert or continue a Loan shall
constitute a representation and warranty that no Default shall have occurred and
be continuing. Accrued interest on a Loan (or portion thereof) being converted
shall be paid by the applicable Borrower(s) at the time of conversion. In
connection with each such conversion or continuation requested by the Borrowers,
the Borrowers shall deliver to the Agent a Notice of Borrowing or shall make
such request by telephone immediately confirmed in writing, it being understood
that the Agent may rely on the authority of any individual making such
telephonic request without the necessity of receipt of such written
confirmation.
2.6 Utilization of Commitments in Optional Currencies.
(a) The Agent will determine the Dollar Equivalent amount of (i) proposed
Loans denominated in an Optional Currency as of the requested Borrowing Date,
and (ii) outstanding Loans denominated in an Optional Currency as of the end of
each Interest Period (each such date under clauses (i) and (ii), a "Computation
Date").
(b) The Banks shall be under no obligation to make the Loans requested by
the Borrowers which are denominated in an Optional Currency if any Bank notifies
the Agent by 5:00 p.m., Philadelphia time, three (3) Business Days prior to the
Borrowing Date for such Loans that such Bank cannot due to market conditions
provide its share of such Loans in such Optional Currency. In the event the
Agent timely receives a notice from a Bank pursuant to the preceding sentence,
the Agent will notify the Borrowers no later than 12:00 noon, Philadelphia time,
two (2) Business Days prior to the Borrowing Date for such Loans that the
Optional Currency is not then available for such Loans, and the Agent shall
promptly thereafter notify the Banks of the same. If the Borrowers receive a
notice described in the preceding sentence, the Borrowers may, by notice to the
Agent not later than 5:00 p.m., Philadelphia time, two (2) Business Days prior
to the Borrowing Date for such Loans, withdraw the Notice of Borrowing for such
Loans. If the Borrowers withdraw such Notice of Borrowing, the Agent will
promptly notify each Bank of the same and the Banks shall not make such Loans.
If the Borrowers do not withdraw such Notice of Borrowing before such time,
(i) the Borrowers shall be deemed to have requested that the Loans referred to
in their Notice of Borrowing shall be made in Dollars in an amount equal to the
Dollar Equivalent amount of such Loans and shall bear interest at the Base Rate,
and (ii) the Agent shall promptly deliver a notice to each Bank stating:
(A) that such Loans shall be made in Dollars and shall bear interest at the Base
Rate, (B) the aggregate amount of such Loans, and (C) such Bank's Ratable Share
of such Loans.
(c) If the Borrowers deliver a Notice of Borrowing pursuant to Section 2.5
requesting that the Banks continue as a LIBOR Loan an outstanding Tranche of
Loans denominated in an Optional Currency, the Banks shall be under no
obligation to continue such LIBOR Loan if any Bank delivers to the Agent a
notice by 5:00 p.m., Philadelphia time, three (3) Business Days prior to
effective date of such continuation that such Bank cannot due to market
conditions provide or continue Loans in such Optional Currency. In the event the
Agent timely receives a notice from a Bank pursuant to the preceding sentence,
the Agent will notify the Borrowers no later than 12:00 noon, Philadelphia time,
two (2) Business Days prior to the effective date of such continuation that the
continuation of such Loans in such Optional Currency is not then available, and
the Agent shall promptly thereafter notify the Banks of the same. If the Agent
shall have so notified the Borrowers that any such continuation of Optional
Currency Loans is not then available, any notice of continuation with respect
thereto shall be deemed withdrawn, and such Optional Currency Loans shall be
prepaid on the last day of the Interest Period with respect to any such Optional
Currency Loans, subject to the provisions of subsection 2.12(c) and to the
Borrowers' right to reborrow in Dollars or in another Optional Currency pursuant
to Section 2.4.
(d) The Borrowers may deliver to the Agent a written request that Loans
hereunder also be permitted to be made in any other lawful currency (other than
Dollars), in addition to the currencies specified in the definition of "Optional
Currency" herein, provided, that such currency must be freely traded in the
offshore interbank foreign exchange markets, freely transferable, freely
convertible into Dollars and available to the Banks in the applicable interbank
market. The Agent may grant or deny such request in its sole discretion. The
Agent will promptly notify the applicable Banks of any such request and whether
the Agent has granted or rejected such request. The Agent will promptly notify
the Borrowers of the acceptance or rejection by the Agent of the Borrowers'
request. The requested currency shall be approved as an Optional Currency
hereunder only if the Agent approves the Borrowers' request.
(e) The Agent may, with respect to notices by the Borrowers for Loans in an
Optional Currency or voluntary prepayments of less than the full amount of an
Optional Currency Tranche, engage in reasonable rounding of the Optional
Currency amounts requested to be loaned or repaid; and, in such event, the Agent
shall promptly notify the Borrowers and the Banks of such rounded amounts and
the Borrowers' request or notice shall thereby be deemed to reflect such rounded
amounts.
2.7 Fees.
(a) The Borrowers jointly and severally agree to pay to the Agent for the
account of each Bank, on each March 31, June 30, September 30 and December 31
during the 364 Day Commitment Period and Five Year Commitment Period and on the
date on which the 364 Day Commitments and the Five Year Commitments shall be
permanently reduced or terminated as provided herein, a facility fee (the
"Facility Fee") at a rate per annum equal to the applicable Facility Fee Rate in
effect from time to time on the amount of the 364 Day Commitment or Five Year
Commitments, as the case may be, during the preceding quarter (or shorter period
commencing with the date hereof or ending with the termination date for such
Facility or the date on which either of such Commitments shall be terminated or
reduced). All Facility Fees shall be computed on the basis of the actual number
of days elapsed in a year of 360 days and shall be paid in Dollars. The Facility
Fees due to each Bank with respect to the 364 Day Facility and the Five Year
Facility shall commence to accrue on the date hereof, and shall cease to accrue
on the 364 Day Termination Date or Five Year Termination Date, as the case may
be. The Agent shall distribute the applicable Facility Fees on the Loans among
the Banks pro rata in accordance with their respective 364 Day Commitment
Percentage or Five Year Commitment Percentages, as the case may be.
(b) The Borrowers jointly and severally agree to pay the Agent, for its own
account, administrative and other fees at the times and in the amounts set forth
in the Fee Letter.
(c) The foregoing fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among the
Banks. Once paid, none of the foregoing fees shall be refundable under any
circumstances.
2.8 Letter of Credit Subfacility.
(a) The Borrowers may request the issuance of a letter of credit (each, a
"Letter of Credit") by delivering to the Issuing Bank a completed Application
and agreement for letters of credit in such form and with such other
certificates, documents and information as the Issuing Bank may specify from
time to time by no later than 10:00 a.m., Philadelphia time, at least five (5)
Business Days, or such shorter period as may be agreed to by the Issuing Bank,
in advance of the proposed date of issuance. Each Letter of Credit shall be
denominated in Dollars. Subject to the terms and conditions hereof and in
reliance on the agreements of the other applicable Banks set forth in this
Section 2.8, the Issuing Bank will issue a Letter of Credit, provided, that each
Letter of Credit shall (A) have a maximum maturity of twelve (12) months from
the date of issuance, and (B) in no event expire later than five (5) Business
Day prior to the Five Year Termination Date, and provided further, that in no
event shall (i) the amount of the Letter of Credit Obligations at any one time
exceed the lesser of (x) $15,000,000, or (y) the Five Year Commitments minus the
Dollar Equivalent amount of the outstanding Five Year Loans and Swing Line Loans
or (ii) the sum of the aggregate Dollar Equivalent amount of all Five Year Loans
made by a Bank plus such Bank's Ratable Share (based on its Five Year Commitment
Percentage) of the amount of Swing Line Loans and Letter of Credit Obligations
then outstanding exceed its Five Year Commitment. The Issuing Bank shall not at
any time be obligated to issue any Letter of Credit hereunder if such issuance
would conflict with, or cause the Issuing Bank or any Letter of Credit
Participant to exceed any limits imposed by any applicable Requirement of Law.
Notwithstanding the provisions of this subsection 2.8, the Five Year Banks and
the Borrowers hereby agree that the Issuing Bank may issue upon the Borrowers'
request, one or more Letter(s) of Credit which by its or their terms may be
extended for additional periods of up to one year each provided that (i) the
initial expiration date (or any subsequent expiration date) of each such Letter
of Credit is not later than five (5) Business Days prior to the Five Year
Termination Date, and (ii) renewal of such Letters of Credit, at the Issuing
Bank's discretion, shall be available upon written request from the Borrowers to
the Issuing Bank at least thirty (30) days (or such other time period as agreed
by the Borrowers and the Agent) before the date upon which notice of renewal is
otherwise required.
(b) The Borrowers shall pay in Dollars (i) to the Agent for the ratable
account of the Five Year Banks a fee (the "Letter of Credit Fee") computed at
the Letter of Credit Fee Rate in effect from time to time and (ii) to the Agent
for the account of the Issuing Bank a fronting fee equal to 0.125% per annum, on
the daily average undrawn stated amount of outstanding Letters of Credit
(computed in each case on the basis of the actual number of days such Letters of
Credit are outstanding in a year of 360 days), which amounts shall be payable
quarterly in arrears commencing with the last Business Day of each March, June,
September and December following the issuance of a Letter of Credit and on the
Five Year Termination Date. The Borrowers shall also pay to the Agent in Dollars
for the sole account of the Issuing Bank, the Issuing Bank's then in effect
customary fees and administrative expenses payable with respect to the Letters
of Credit as the Issuing Bank may generally charge or incur from time to time in
connection with the issuance, maintenance, modification (if any), assignment or
transfer (if any), negotiation, and administration of Letters of Credit. Once
paid, all of the above fees shall be nonrefundable under all circumstances. The
Agent shall, promptly following its receipt thereof, distribute to the Issuing
Bank and the Five Year Banks all fees and commissions received by the Agent for
their respective accounts pursuant to this subsection.
(c) (i) The Issuing Bank irrevocably agrees to grant and hereby grants to
each Letter of Credit Participant, and, to induce the Issuing Bank to issue
Letters of Credit hereunder, each Letter of Credit Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions hereinafter stated, for such Letter of Credit
Participant's own account and risk, an undivided interest equal to such Letter
of Credit Participant's Five Year Commitment Percentage in the Issuing Bank's
obligations and rights under each Letter of Credit issued by the Issuing Bank
hereunder and the amount of each draft paid by the Issuing Bank thereunder. Each
Letter of Credit Participant unconditionally and irrevocably agrees with the
Issuing Bank that, if a draft is paid under any Letter of Credit issued by the
Issuing Bank for which the Issuing Bank is not reimbursed in full by the
Borrowers in accordance with the terms of this Agreement, such Letter of Credit
Participant shall pay to the Issuing Bank upon demand at the Issuing Bank's
address for notices specified herein an amount equal to such Letter of Credit
Participant's Five Year Commitment Percentage of the amount of such draft or any
part thereof, which is not so reimbursed. Any action taken or omitted by the
Issuing Bank under or in connection with a Letter of Credit, if taken or omitted
in the absence of gross negligence or willful misconduct, shall not create for
the Issuing Bank any resulting liability to any Bank.
(ii) If any amount required to be paid by any Letter of Credit Participant
to the Issuing Bank pursuant to subsection 2.8(c)(i) in respect of any
unreimbursed portion of any payment made by the Issuing Bank under any Letter of
Credit is not paid to the Issuing Bank on the date such payment is due from such
Letter of Credit Participant, such Letter of Credit Participant shall pay to the
Issuing Bank on demand an amount equal to the product of (x) such amount, times
(y) the daily average Federal Funds Effective Rate, as quoted by the Issuing
Bank, during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Issuing Bank,
times (z) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. A certificate of the
Issuing Bank submitted to any Letter of Credit Participant with respect to any
amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(iii) Whenever, at any time after the Issuing Bank has made payment under
any Letter of Credit and has received from any Letter of Credit Participant its
pro-rata share of such payment in accordance with subsection 2.8(c)(i), the
Issuing Bank receives any payment related to such Letter of Credit (whether
directly from the Borrowers or otherwise, including by way of set-off or
proceeds of collateral applied thereto by the Issuing Bank), or any payment of
interest on account thereof, the Issuing Bank will distribute to such Letter of
Credit Participant its pro-rata share thereof; provided, however, that in the
event that any such payment received by the Issuing Bank shall be required to be
returned by the Issuing Bank, such Letter of Credit Participant shall return to
the Issuing Bank the portion thereof previously distributed by the Issuing Bank
to it.
(d) (i) Each Borrower jointly and severally agrees to reimburse the Issuing
Bank in respect of a Letter of Credit on each date on which a draft presented
under such Letter of Credit is paid by the Issuing Bank for the amount of (i)
such draft so paid and (ii) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Bank in connection with such payment. Each such payment
shall be made to the Issuing Bank at its Principal Office in Dollars and in
immediately available funds.
(ii) Interest shall be payable on any and all amounts remaining unpaid by
the Borrowers under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the per annum rate of the Base Rate plus 2.0% and shall be payable on demand
by the Issuing Bank.
(e) (i) The obligations of the Borrowers under this subsection 2.8 shall be
joint and several. The Borrowers also jointly and severally agree with the
Issuing Bank that the Issuing Bank shall not be responsible for, and the
Borrowers' Reimbursement Obligations under subsection 2.8(d)(i) shall not be
affected by, among other things (x) the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, provided, that reliance upon such documents by
the Issuing Bank shall not have constituted gross negligence or willful
misconduct of the Issuing Bank or (y) any dispute between or among any Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or (z) any claims whatsoever of any Borrower
against any beneficiary of such Letter of Credit or any such transferee.
(ii) The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Bank's gross negligence or willful
misconduct.
(iii) Each Borrower jointly and severally agrees that any action taken or
omitted by the Issuing Bank under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct, shall be binding on such Borrower and shall not result in
any liability of the Issuing Bank to such Borrower.
(f) If any draft shall be presented for payment to the Issuing Bank under
any Letter of Credit, the Issuing Bank shall promptly notify the Company of the
date and amount thereof. The responsibility of the Issuing Bank to the Borrowers
in connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit and any other obligation expressly imposed by the provisions of
the Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500 ("Publication 500") other
than Article 48(g) thereof, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit.
(g) To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Agreement, the
provisions of this Agreement shall apply.
(h) Each Borrower agrees jointly and severally to be bound by the terms of
each Application and the Issuing Bank's written regulations and customary
practices relating to letters of credit, though such interpretation may be
different from such Borrower's own. It is understood and agreed that, except in
the case of gross negligence or willful misconduct, the Agent shall not be
liable for any error, negligence and/or mistakes, whether of omission or
commission, in following the Borrowers' instructions or those contained in the
Letters of Credit or any modifications, amendments or supplements thereto. To
the extent not otherwise inconsistent with this Agreement, the provisions of
Publication 500 are hereby made a part of this Agreement with respect to the
obligations in connection with each Letter of Credit.
(i) Each Five Year Bank's payment obligation under subsection 2.8(c) and
the obligations of the Borrowers to reimburse the Issuing Bank upon a draw under
a Letter of Credit, shall be absolute, unconditional and irrevocable under any
circumstances, and shall be performed strictly in accordance with the terms of
this Section 2.8 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right which
such Bank may have against the Issuing Bank, the Borrowers or any other Person
for any reason whatsoever;
(ii) any lack of validity or enforceability of any Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right which the
Borrowers or any Five Year Bank may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), the Issuing Bank or any Bank or any other Person or,
whether in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between the
Borrowers and the beneficiary for which any Letter of Credit was procured);
(iv) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect
even if the Issuing Bank has been notified thereof;
(v) payment by the Issuing Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit;
(vi) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of the Borrowers;
(vii) any breach of this Agreement or any other Loan Document by any of the
Borrowers;
(viii) the occurrence or continuance of an insolvency proceeding with
respect to the Borrowers;
(ix) the fact that an Event of Default or a Default shall have occurred and
be continuing;
(x) the fact that the Five Year Termination Date shall have passed or this
Agreement or the Five Year Commitments hereunder shall have been terminated; and
(xi) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing.
(j) In addition to amounts payable as provided in Section 9.5, the
Borrowers hereby agree to protect, indemnify, pay and save harmless the Issuing
Bank and the Banks from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel) which the Issuing Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, other than as a result of (A) the gross negligence or willful
misconduct of the Issuing Bank as determined by a final judgment of a court of
competent jurisdiction or (B) subject to the following clause (ii), the wrongful
dishonor by the Issuing Bank of a proper demand for payment made under any
Letter of Credit, or (ii) the failure of the Issuing Bank to honor a drawing
under any such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Governmental
Acts").
(k) As between the Borrowers and the Issuing Bank, the Borrowers assume all
risks of the acts and omissions of, or misuse of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Issuing Bank shall have been notified thereof); (ii) the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) the failure of the beneficiary of
any such Letter of Credit, or any other party to which such Letter of Credit may
be transferred, to comply fully with any conditions required in order to draw
upon such Letter of Credit or any other claim of the Borrowers against any
beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among the Borrowers and any beneficiary of any Letter of Credit or
any such transferee; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, facsimile, cable, telex or
otherwise; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Bank, including any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of the Issuing Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth above, any action taken or omitted by the Issuing Bank
under or in connection with the Letters of Credit issued by it or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall
not create any liability of the Issuing Bank to the Borrowers or any Bank.
2.9 Interest Rates and Payment Dates. The Borrowers shall pay interest in
respect of the outstanding unpaid principal amount of the 364 Day Loans and the
Five Year Loans as selected by it from the Base Rate or LIBOR Rate set forth
below applicable thereto, it being understood that, subject to the provisions of
this Agreement, the Borrowers may select different interest rates and different
Interest Periods to apply simultaneously to Loans comprising different Tranches
and may convert to or renew one or more interest rates with respect to all or
any portion of Loans comprising any Tranche, provided, that there shall not be
at any one time outstanding more than five (5) Tranches in the aggregate under
the 364 Day Facility and eight (8) Tranches in the aggregate under the Five Year
Facility (excluding Swing Line Loans). If at any time the designated rate
applicable to any Loan made by any Bank exceeds such Bank's highest lawful rate,
the rate of interest on such Bank's Loan shall be limited to such Bank's highest
lawful rate. Interest on the principal amount of each Loan made in an Optional
Currency shall be paid by the Borrowers in such Optional Currency.
(a) Subject to the provisions of Section 2.10, (i) each Base Rate Loan
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) at a rate per annum equal to
the Base Rate, and (ii) each Swing Line Loan shall bear interest at the Base
Rate or another rate to which the Borrowers and the Swing Line Bank agree.
(b) Subject to the provisions of Section 2.10, each LIBOR Loan shall bear
interest at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 360 days, provided that, for Loans made in an Optional
Currency for which a 365-day basis is the only market practice available to the
Agent, such rate shall be calculated on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) equal to the LIBOR
Rate for the Interest Period in effect for such LIBOR Loan plus the Applicable
Margin.
(c) Interest on each 364 Day Loan and Five Year Loan shall be payable in
arrears on each Interest Payment Date applicable to such Loan; provided, that
(i) interest accruing on overdue amounts pursuant to Section 2.10 shall be
payable on demand as provided in such Section and (ii) accrued and unpaid
interest on such Loans shall be payable on the 364 Day Termination Date or the
Five Year Termination Date, as the case may be. Interest on each Swing Line Loan
shall be payable on the day such Swing Line Loan becomes due, including the Five
Year Termination Date.
(d) As soon as practicable the Agent shall notify the Borrowers and the
Banks of (i) each determination of a LIBOR Rate and (ii) the effective date and
the amount of each change in the interest rate on a LIBOR Loan or Base Rate
Loan. Each determination of an interest rate by the Agent, pursuant to any
provision of this Agreement (including this Section 2.9 and Section 2.10) shall
be conclusive and binding on the Borrowers and the Banks in the absence of
clearly demonstrable error). At the request of the Borrowers, the Agent shall
deliver to the Borrowers a statement showing the quotations used by it in
determining any interest rate pursuant to subsections 2.9(a) and (b).
2.10 Default Interest. Upon the occurrence of and during the continuance of
an Event of Default under subsection 7.1(a) or (f), the outstanding principal
amount of the Loans and, to the extent permitted by law, accrued and unpaid
interest thereon and any other amount payable hereunder, shall bear interest
from the date of such occurrence at a rate per annum which is equal to two
percent (2%) in excess of the Base Rate (after as well as before judgment). Upon
the occurrence of and during the continuance of an Event of Default other than
under subsection 7.1(a) or (f), the outstanding principal amount of the Loans
and, to the extent permitted by law, accrued and unpaid interest thereon and any
other amounts payable hereunder, shall bear interest from the date that the
Agent, at the written request of the Required Banks, shall send notice to the
Company of the application of the default rate at a rate per annum which is
equal to two percent (2%) in excess of the Base Rate (after as well as before
judgment).
2.11 Pro Rata Treatment of Loans and Payments; Facility Fees.
(a) Except as required under Section 2.13, each borrowing by the Borrowers
hereunder, each payment or prepayment of principal of the Loans (other than the
Swing Line Loans), each payment of interest on such Loans, each payment of
Facility Fees and Letter of Credit Fees, and each reduction of the 364 Day
Commitments and the Five Year Commitments, shall be made pro rata among the
Banks in accordance with their respective 364 Day Commitment Percentages or Five
Year Commitment Percentages, as the case may be.
(b) Except as provided in subsection 2.1(d), each borrowing of a Swing Line
Loan, each payment or prepayment of principal of a Swing Line Loan, each payment
of interest on the Swing Line Loans and each reduction of the Swing Line
Commitment shall be for the sole account of the Swing Line Bank.
(c) Each Bank agrees that in computing such Bank's portion of any borrowing
to be made hereunder, the Agent may, in its discretion, round each Bank's
percentage of such borrowing to the next higher or lower whole Dollar amount.
2.12 Payments.
(a) The Borrowers shall make each payment (including principal of or
interest on any borrowing or any fees or other amounts) hereunder not later than
11:00 a.m., Philadelphia time, on the date when due to the Agent at its offices
set forth in Section 9.2 for the ratable accounts of the Banks in Dollars in
immediately available funds; provided that, any payments of principal of or
interest on a Loan in an Optional Currency shall be made not later than the time
that the Borrowers shall be notified by the Agent for payments with respect to
such Optional Currency, on the date due in immediately available funds at the
Lending Office at which such Loan was made in such funds as may then be
customary for the settlement of international transactions in such other
Optional Currency. Such payments shall be made without set-off or counterclaim
of any kind. The Agent shall distribute to the applicable Banks any payments
received by the Agent promptly upon receipt in like funds as received. The Agent
shall promptly distribute such amounts to the applicable Banks in immediately
available funds. The Agent's and each Bank's statement of account, ledger or
other relevant record shall, in the absence of manifest error, be conclusive as
the statement of the amount of principal of and interest on the Loans and other
amounts owing under this Agreement (including the Equivalent Amounts of the
applicable currencies where such computations are required).
(b) Whenever any payment (including principal of or interest on any
borrowing or any fees or other amounts) hereunder (other than payments on LIBOR
Loans) 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. Whenever any payment (including principal of or
interest on any borrowing or any fees or other amounts) hereunder on a LIBOR
Loan 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 unless the
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
(c) The entire amount of principal of and interest on any Loan made in an
Optional Currency shall be repaid in the same Optional Currency in which such
Loan was made, provided, however, that if it is impossible or illegal for the
Borrowers to effect payment of a Loan in the Optional Currency in which such
Loan was made, or if the Borrowers default in their obligations to do so, the
Required Banks may at their option permit such payment to be made (i) at and to
a different location, subsidiary, affiliate or correspondent of the Agent, or
(ii) in the Equivalent Amount of Dollars or (iii) in an Equivalent Amount of
such other currency (freely convertible into Dollars) as the Required Banks may
solely at their option designate. Upon any events described in (i) through (iii)
of the preceding sentence, the Borrowers shall make such payment and the
Borrowers agree to hold each Bank harmless from and against any loss incurred by
any Bank arising from the cost to such Bank of any premium, any costs of
exchange, the cost of hedging and covering the Optional Currency in which such
Loan was originally made, and from any change in the value of Dollars, or such
other currency, in relation to the Optional Currency that was due and owing.
Such loss shall be calculated for the period commencing with the first day of
the Interest Period for such Loan and continuing through the date of payment
thereof. Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the Borrowers' obligations under this subsection shall
survive termination of this Agreement.
2.13 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available.
(a) The Agent shall have the rights specified in subsection 2.13(c) if on
any date on which a LIBOR Rate would otherwise be determined, the Agent shall
have determined that adequate and reasonable means do not exist for ascertaining
such LIBOR Rate.
(b) The Agent shall have the rights specified in subsection 2.13(c) if at
any time:
(i) any Bank shall have determined that the making, maintenance or funding
of any Loan to which a LIBOR Rate applies has been made unlawful by compliance
by such Bank in good faith with any Law or any interpretation or application
thereof by any Governmental Authority or with any request or directive of any
such Governmental Authority (whether or not having the force of Law), or
(ii) the Required Banks shall have determined that the making, maintenance
or funding of any Loan to which a LIBOR Rate applies has been made impracticable
by compliance by such Banks in good faith with any Law or any interpretation or
application thereof by any Governmental Authority or with any request or
directive of any such Governmental Authority (whether or not having the force of
Law), or
(iii) any Bank shall have determined that such LIBOR Rate will not
adequately and fairly reflect the cost to such Bank of the establishment or
maintenance of any such Loan, or
(iv) any Bank shall have determined that after making all reasonable
efforts, deposits of the relevant amount in Dollars or in the Optional Currency
(as applicable) for the relevant Interest Period for a Loan to which a LIBOR
Rate applies are not available to such Bank in the London interbank market.
(c) In the case of any event specified in subsection 2.13(a) above, the
Agent shall promptly so notify the Banks and the Borrowers thereof, and in the
case of an event specified in subsection 2.13(b) above, such Bank(s) shall
promptly so notify the Agent and endorse a certificate to such notice as to the
specific circumstances of such notice, and the Agent shall promptly send copies
of such notice and certificate to the other Banks and the Borrowers. Upon such
date as shall be specified in such notice (which shall not be earlier than the
date such notice is given), the obligation of (A) the Banks, in the case of such
notice given by the Agent, or (B) such Bank(s), in the case of such notice given
by such Bank(s), to allow the Borrowers to select, convert to or renew a LIBOR
Rate or select an Optional Currency (as applicable) shall be suspended until the
Agent shall have later notified the Borrowers, or such Bank(s) shall have later
notified the Agent, of the Agent's or such Bank(s)', as the case may be,
determination that the circumstances giving rise to such previous determination
no longer exist. If at any time the Agent makes a determination under
subsection 2.13(a) and the Borrowers have previously notified the Agent of their
selection of, conversion to or renewal of a LIBOR Rate and such interest rate
has not yet gone into effect, such notification shall be deemed to provide for
selection of, conversion to or renewal of a Base Rate Loan to the extent
permitted hereunder. If any Bank notifies the Agent of a determination under
subsection 2.13(b), the Borrowers shall, subject to the Borrowers'
indemnification obligations under subsection 2.18 as to any Loan of the Bank to
which a LIBOR Rate applies, on the date specified in such notice either (i) as
applicable, convert such Loan (if not denominated in an Optional Currency) to
the Base Rate or select a different Optional Currency or Dollars, or (ii) prepay
such Loan in accordance with Section 2.15. Absent due notice from the Borrowers
of conversion or prepayment, such Loan shall automatically be converted to the
Base Rate upon such specified date unless such Loan is in an Optional Currency
in which case such Loan shall be prepaid.
2.14 Termination, Reduction and Extension of Commitments.
(a) The 364 Day Commitments shall be automatically terminated on the 364
Day Termination Date whereupon all 364 Day Loans and accrued interest thereon
shall become due and payable. The Five Year Commitments and the Swing Line
Commitment shall be automatically terminated on the Five Year Termination Date
whereupon all Five Year Loans and Swing Line Loans and
accrued interest thereon shall become due and payable.
(b) Upon at least five Business Days' prior irrevocable written (including
facsimile) notice to the Agent, the Borrowers may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that (i) each partial reduction of the
Commitments under either Facility shall be in a minimum principal amount of
$1,000,000 or in a whole multiple thereof, and (ii) the Commitments may not be
reduced or terminated if, after giving effect thereto and to any prepayments of
the Loans made on the effective date thereof, the Dollar Equivalent Facility
Usage of the 364 Day Facility or the Five Year Facility at such time would
exceed the aggregate amount of the 364 Day Commitments or the Five Year
Commitments, as the case may be, at such time.
(c) Each reduction in the 364 Day Commitments or the Five Year Commitments
hereunder shall be made ratably among the Banks in accordance with their
respective 364 Day Commitment Percentages or Five Year Commitment Percentages.
The Borrowers shall pay to the Agent for the account of the applicable Banks on
the date of each termination or reduction of the 364 Day Commitments or the Five
Year Commitments, as the case may be, the Facility Fees on the amount of such
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
(d) (i) During the period beginning one hundred and twenty (120) days and
ending sixty (60) days prior to the initial and any subsequent 364 Day
Termination Date, the Borrowers may deliver to the Agent (which shall promptly
transmit to each 364 Day Bank) a notice (an "Extension Request") requesting that
the 364 Day Commitments be extended to the date three hundred sixty four (364)
days after the 364 Day Termination Date then in effect (a "Subsequent 364 Day
Termination Date"). Within thirty (30) days after its receipt of any such
notice, each applicable Bank shall notify the Agent of its willingness or
unwillingness so to extend its 364 Day Commitment. Any Bank that shall fail so
to notify the Agent within such period shall be deemed to have declined to
extend its 364 Day Commitment. In the event that 364 Day Banks holding at least
51% of the 364 Day Commitments shall approve an Extension Request (i) the
respective 364 Day Commitments of the 364 Day Banks shall, without further act
by any party hereto, be extended to the Subsequent 364 Day Termination Date but
only with respect to the 364 Day Banks that have given such written approval,
and (ii) the term "364 Day Termination Date" shall thereafter mean such
Subsequent 364 Day Termination Date. Any such extension shall be evidenced by a
written agreement among the Agent, the 364 Day Banks that have approved such
Extension Request and the Borrowers, such agreement to be in form and substance
acceptable to the Agent and the Banks. Except to the extent that a 364 Day Bank
that did not give its written approval to such Extension Request (a "Declining
Bank") is replaced prior to the 364 Day Termination Date in effect prior to such
Extension Request (the "Declining Bank's 364 Day Maturity Date"), as provided in
clause (ii) below, the 364 Day Loans and all interest, fees and other amounts
owed to such Declining Banks with respect to the 364 Day Facility shall be paid
in full on the Declining Bank's 364 Day Maturity Date.
(ii) In the event that the 364 Day Banks holding at least 51% of the 364
Day Commitments shall have approved an Extension Request, the Borrowers shall
have the right, but not the obligation, at their own expense, upon notice to a
Declining Bank and the Agent, to replace such Declining Bank (in accordance with
and subject to the restrictions contained in Section 9.6) at any time before the
fifth (5th) day prior to the 364 Day Termination Date with a bank or other
financial institution (a "Replacement Bank") willing to purchase all of the
Declining Banks' interests under the 364 Day Facility and to approve the
extension of the 364 Day Termination Date. Upon the request of the Agent, a
Declining Bank will transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 9.6) all of its interests,
rights and obligations under its 364 Day Commitment to the applicable
Replacement Bank; provided, however, that (i) no such assignment shall conflict
with any Requirement of Law, and (ii) such Declining Bank shall be paid in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the 364 Day Loans made by such
Declining Bank and all other amounts accrued for such Declining Bank's account
or owed to it hereunder with respect to its 364 Day Commitment and 364 Day Loans
(including fees and any unpaid costs or expenses). The addition of such
Replacement Bank or Banks shall be subject to the consent of the Agent, which
consent will not be unreasonably withheld.
(iii) At any time prior to the replacement of a Declining Bank pursuant to
clause (ii) above, the Borrowers may, upon not less than 15 days' prior written
notice to the Agent and such Declining Bank, elect to repay in full all 364 Day
Loans held by such Declining Bank as of a Business Day (prior to such Declining
Bank's 364 Day Maturity Date) set forth in such notice. In the event of such
election by the Borrowers, the Borrowers shall pay to the Agent on the date
designated in such notice, for the account of such Declining Bank, the
outstanding amount of all 364 Day Loans and other sums payable to such Declining
Bank hereunder and all amounts (if any) payable to such Declining Bank under
Section 2.18 by reason of such payment.
2.15 Prepayment of Loans.
(a) The Borrowers shall have the right at any time and from time to time to
prepay Loans in the currency or currencies in which such Loans were made, in
whole or in part, without premium or penalty (but in any event subject to
subsection 2.18), upon prior written, telecopy or telephonic notice to the Agent
given, in the case of Base Rate Loans, no later than 11:00 am., Philadelphia
time, one Business Day before any proposed prepayment, and in the case of LIBOR
Loans, no later than 11:00 a.m., Philadelphia time, three Business Days before
any such proposed prepayment. In each case the notice shall specify the date,
amount and currency of each such prepayment, whether the prepayment is of LIBOR
Loans or Base Rate Loans, or a combination thereof, and, if a combination
thereof, the amount allocable to each; provided, however, that each such partial
prepayment shall be in the principal amount of at least (i) with respect to
prepayments of Base Rate, $1,000,000 or in whole multiples of $100,000 in excess
thereof, and (ii) with respect to prepayments of Loans in Dollars that bear
interest at the LIBOR Rate, $3,000,000 or in whole multiples of $100,000 in
excess thereof, and (iii) with respect to prepayment of Loans in an Optional
Currency, the Dollar Equivalent of $3,000,000 or in whole multiples of $100,000
in excess thereof.
(b) On the date of any termination or reduction of either of the 364 Day
Commitments or the Five Year Commitments pursuant to Section 2.14, the Borrowers
shall pay or prepay so much of the Loans as shall be necessary in order that the
Dollar Equivalent Facility Usage at such time would not exceed the aggregate
amount of the 364 Day Commitments or the Five Year Commitments at such time, as
applicable.
(c) If on any Computation Date the amount of the Dollar Equivalent Facility
Usage of the 364 Day Facility or the Five Year Facility is greater than the
aggregate amount of the 364 Day Commitments or the Five Year Commitments at such
time, as applicable, as a result of a change in exchange rates between one or
more Optional Currencies and Dollars, then the Agent shall notify the Borrowers
of the same and the Borrowers shall within two (2) Business Days after receiving
such notice prepay so much of the Loans as shall be necessary in order that the
Dollar Equivalent Facility Usage of the Facilities shall not exceed the
aggregate amount of the 364 Day Commitments or Five Year Commitments, as the
case may be, after giving effect to such prepayments.
(d) All prepayment notices shall be irrevocable. The principal amount of
the Loans for which a prepayment notice is given, together with interest on such
principal amount except with respect to Base Rate Loans, shall be due and
payable on the date specified in such prepayment notice as the date on which the
proposed prepayment is to be made in the currency in which such Loan was made.
If the Borrowers prepay a Five Year Loan, all outstanding Swing Line Loans shall
(unless the Swing Line Bank shall otherwise agree) first be repaid from the
proceeds thereof. If the Borrowers fail to specify the applicable Tranche which
the Borrowers are prepaying, the prepayment shall, subject to the immediately
prior sentence, be applied to Base Rate Loans, then to Dollar LIBOR Loans and
then to Optional Currency Loans, with payments applied to LIBOR Loans being
applied in order of next maturing Interest Periods. Any prepayment hereunder
shall be subject to the Borrowers' obligation to indemnify the Banks under
Section 2.18.
(e) Upon receipt of any notice of prepayment, the Agent shall promptly
notify each Bank thereof.
(f) Amounts prepaid pursuant to this Section (other than subsection (b)
hereof) may be reborrowed, subject to the terms and conditions hereof.
2.16 Requirements of Law.
(a) In the event that any change in any Requirement of Law or in the
interpretation, or application thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with respect
to this Agreement, any Note, any Letter of Credit, any Application or any LIBOR
Loan made by it or payments by the Borrowers of principal, interest, fees or
other amounts due from the Borrowers hereunder, or change the basis of taxation
of payments to such Bank in respect thereof (except for taxes covered by Section
2.17 and changes in the rate of tax on the net income or franchise taxes of such
Bank or a surcharge on the net income or franchise taxes of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans, letters of credit or
other extensions of credit by, or any other acquisition of funds by, any Bank or
any Lending Office of any Bank which is not otherwise included in the
determination of the interest rate on such LIBOR Loan hereunder; or
(iii) shall impose on any Bank or any Lending Office of any Bank any other
condition;
and the result of any of the foregoing is to increase the cost to such Bank
or its Lending Office, by an amount which such Bank deems to be material, of
making, converting into, continuing or maintaining LIBOR Loans, maintaining any
commitment hereunder or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof then, in any such
case, the Borrowers shall as promptly as practicable pay such Bank, upon its
demand, any additional amounts necessary to compensate such Bank for such
increased cost or reduced amount receivable. If any Bank becomes entitled to
claim any additional amounts pursuant to this subsection, it shall as promptly
as practicable notify the Company, through the Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection setting out in reasonable detail the
calculation thereof, submitted by such Bank, through the Agent, to the Company
shall be conclusive in the absence of clearly demonstrable error. This covenant
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(b) In the event that any Bank shall have determined that any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Bank or any corporation controlling
such Bank with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof does or shall have the effect of reducing the rate of return on
such Bank's or such corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Bank or
such corporation could have achieved but for such change or compliance (taking
into consideration such Bank's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, the Borrowers shall as promptly as practicable pay such Bank, upon
its demand, such additional amount or amounts as will compensate such Bank for
such reduction. If any Bank becomes entitled to claim any additional amounts
pursuant to this subsection, it shall as promptly as practicable notify the
Company, through the Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Bank, through the Agent, to the Company shall be
conclusive in the absence of clearly demonstrable error. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
(c) Each Bank agrees that it will use reasonable efforts in order to avoid
or to minimize, as the case may be, the payment by the Borrowers of any
additional amount under subsection 2.16(a) or (b); provided, however, that no
Bank shall be obligated to incur any expense, cost or other amount in connection
with utilizing such reasonable efforts.
(d) Failure or delay on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital ("Costs") shall not constitute a waiver of such Bank's right
to demand such compensation; provided that the Borrowers shall not be under any
obligation to compensate any Bank under paragraph (a) or (b) above with respect
to Costs with respect to any period prior to the date that is three months prior
to the date such Bank knew or should reasonably have been expected to be aware
of (i) the circumstances giving rise to such Costs, (ii) the fact that such
circumstances would in fact result in a claim for increased compensation by
reason of such Costs, and (iii) the exact amount of such Costs; provided further
that the foregoing limitation shall not apply to any Costs arising out of the
retroactive application of any law, regulation, rule, guideline or directive as
aforesaid within such three month period.
2.17 Taxes.
(a) All payments made by the Borrowers hereunder and under each Note shall
be made free and clear of and without deduction for any present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all liabilities with
respect thereto (excluding, in the case of the Agent and each Bank, net income
taxes and franchise or gross receipts taxes imposed on the Agent or such Bank,
as the case may be, as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Agent or such Bank (excluding a connection arising solely from the Agent or such
Bank having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or the Notes)) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). If the Borrowers shall be required by Law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Agent and each Bank receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrowers shall make such deductions and (iii) the Borrowers shall timely pay
the full amount deducted to the relevant tax authority or other authority in
accordance with applicable Law.
(b) In addition, the Borrowers agree to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
any Note (hereinafter referred to as "Other Taxes").
(c) The Borrowers shall indemnify the Agent and each Bank for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
subsection) paid by the Agent or any Bank and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date the Agent or a
Bank makes written demand therefor.
(d) Within 30 days after the date of any payment of any Taxes by the
Borrowers, if available, the Borrowers shall furnish to the Agent and each Bank,
at its address referred to herein, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in subsections 2.17(a) through (d) shall survive the payment in full of
principal and interest hereunder and under any instrument delivered hereunder.
(f) Each Bank that is not incorporated under the laws of the United States
of America or a state thereof agrees that it will deliver to the Borrowers and
the Agent (i) two duly completed copies of United States Internal Revenue
Service Form W-8ECI or W-8BEN or successor applicable form, as the case may be,
and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Bank also agrees to deliver to the Borrowers and the Agent two
further copies of the said Form W-8ECI or W-BEN and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrowers, and such extensions or renewals
thereof as may reasonably be requested by the Borrowers or the Agent, unless in
any such case an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank so advises the Company and the Agent. Each such Bank shall
certify (i) in the case of a Form W-8ECI or W-BEN, that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or W-9 or
successor applicable form, that it is entitled to an exemption from United
States backup withholding tax.
(g) Notwithstanding the foregoing subsections 2.17(a) through (e), the
Borrowers shall not be required to pay any additional amounts to any Bank in
respect of United States withholding tax pursuant to such subsections if (i) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with the requirements of subsection 2.17(f) or
(ii) such Bank shall not have furnished the Company with such forms listed in
subsection 2.17(f) and shall not have taken such other steps as reasonably may
be available to it under applicable tax laws and any applicable tax treaty or
convention to obtain an exemption from, or reduction (to the lowest applicable
rate) of, such United States withholding tax.
(h) If the Agent or any Bank receives a refund in respect of Taxes or Other
Taxes paid by the Borrowers, which in the good faith judgment of the Agent or
such Bank is allocable to such payment, it shall, if no Event of Default has
occurred, promptly pay such refund to the Borrowers, net of all out-of-pocket
expenses (including any taxes to which such Bank has become subject as a result
of its receipt of such refund) of the Agent or such Bank incurred in obtaining
such refund and without interest; provided, however, that the Borrowers agree to
promptly return such refund (plus all out-of-pocket expenses including any
penalties, interest or other charges imposed by the relevant governmental
authority) to the Agent or the applicable Bank, as the case may be, if it
receives notice from the Agent or such Bank that the Agent or such Bank is
required to repay such refund to such governmental authority. Nothing contained
in this Section 2.17(h) shall require the Agent or any Bank to make available
its tax returns (or any other information relating to its taxes which it deems
to be confidential) to the Borrowers or any other Person.
2.18 Indemnity.
(a) The Borrowers jointly and severally agree to indemnify each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (i) default by the Borrowers in payment when due of
the principal amount of or interest on any LIBOR Loan or Swing Line Loan, (ii)
default by the Borrowers in making a borrowing of, conversion into or
continuation of LIBOR Loans or Swing Line Loans which are not Base Rate Loans
after the Borrowers have given a notice requesting the same in accordance with
the provisions of this Agreement, (iii) default by the Borrowers in making any
prepayment after the Borrowers have given a notice thereof in accordance with
the provisions of this Agreement or (iv) the making of a prepayment (whether
voluntary, mandatory, as a result of acceleration or otherwise) of LIBOR Loans
or Swing Line Loans which are not Base Rate Loans on a day which is not the last
day of an Interest Period with respect thereto (or, in the case of a Swing Line
Loans on the date such Swing Line Loan is due), including, without limitation,
in each case, any such loss or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained. A certificate as to any amounts that a Bank is entitled to
receive under this Section 2.18 submitted by such Bank, through the Agent, to
the Company shall be conclusive in the absence of clearly demonstrable error and
all such amounts shall be paid by the Borrowers promptly upon demand by such
Bank. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder.
(b) For the purpose of calculation of all amounts payable to a Bank under
this subsection, each Bank shall be deemed to have actually funded its relevant
LIBOR Loan or Swing Line Loan through the purchase of a deposit bearing interest
at the LIBOR Rate or the applicable rate on such Swing Line Loan, as the case
may be, in an amount equal to the amount of that LIBOR Loan or Swing Line Loan,
as the case may be, and having a maturity comparable to the relevant Interest
Period or applicable period for such Swing Line Loan; provided, however, that
each Bank may fund each of its LIBOR Loans, and the Swing Line Bank may fund its
Swing Line Loans, in any manner it sees fit, and the foregoing assumptions shall
be utilized only for the calculation of amounts payable under this subsection.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.19 Judgment Currency.
(a) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder or under a Note in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties hereby
agree, to the fullest extent permitted by Law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the Original Currency with the Other Currency after any premium
and costs of exchange on the Business Day preceding that on which final judgment
is given.
(b) The obligation of the Borrowers in respect of any sum due from the
Borrowers to any Bank hereunder shall, notwithstanding any judgment in an Other
Currency, whether pursuant to a judgment or otherwise, be discharged only to the
extent that, on the Business Day following receipt by any Bank of any sum
adjudged to be so due in such Other Currency, such Bank may in accordance with
normal banking procedures purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to such Bank in the Original Currency, the Borrowers jointly
and severally agree, as a separate obligation and notwithstanding any such
judgment or payment, to indemnify such Bank against such loss.
2.20 Borrowers' Representative. Each of the Borrowers hereby appoints the
Company as its non-exclusive representative, and grants to the Company an
irrevocable power of attorney to act as its attorney-in-fact, with regard to all
matters relating to this Agreement and each of the other Loan Documents,
including, without limitation, execution and delivery of any Notice of
Borrowing, and amendments, supplements, waivers or other modifications hereto or
thereto, receipt of any notices hereunder or thereunder and receipt of service
of process in connection herewith or therewith and making all elections as to
interest rates and interest payment dates. (In such capacity, the Company is
herein referred to as the "Borrowers' Representative.") The Agent and the Banks
shall be entitled to rely exclusively on the Borrowers' Representative's
authority so to act in each instance without inquiry or investigation, and each
of the Borrowers hereby agrees to indemnify and hold harmless the Agent and the
Banks for any losses, costs, delays, errors, claims, penalties or charges
arising from or out of the Borrowers' Representative's actions pursuant to this
Section 2.20 and the Agent's and the Banks' reliance thereon and hereon. Notice
from the Borrowers' Representative shall be deemed to be notice from all of the
Borrowers and notice to the Borrowers' Representative shall be deemed to be
notice to all of the Borrowers. Nothing in this Section 2.20 shall vitiate or be
held contrary to the Borrowers' representations and covenants regarding the
Loans or the net worth or solvency of the Borrowers made herein or in any of the
Loan Documents.
2.21 European Monetary Union. (a) If, as a result of the implementation of
the European monetary union, (i) any Optional Currency ceases to be lawful
currency of the nation issuing the same and is replaced by the Euro, or (ii) any
Optional Currency and the Euro are at the same time recognized by any
governmental authority of the nation issuing such currency as lawful currency of
such nation and the Agent shall so request in a notice delivered to the
Borrowers, then any amount payable hereunder by the Borrowers in such Optional
Currency shall instead be payable in the Euro and the amount so payable shall be
determined by translating the amount payable in such Optional Currency to the
Euro at the exchange rate recognized by the European Central Bank for the
purpose of implementing the European monetary union. Prior to the occurrence of
the event or events described in clauses (i) and (ii) of the preceding sentence,
each amount payable hereunder in any Optional Currency will, except as otherwise
provided herein, continue to be payable only in that Optional Currency.
(b) The Borrowers agree, at the request of the Agent, to compensate the
Agent or any Bank for any loss, cost, expense or reduction in return that the
Agent or such Bank shall reasonably determine shall be incurred or sustained by
the Agent or such Bank as a result of the implementation of the European
monetary union and that would not have been incurred or sustained but for the
transactions provided for herein. A certificate of the Agent or such Bank
setting forth the determination of the amount or amounts necessary to compensate
the Agent or such Bank shall be delivered to the Borrowers through the Agent and
shall be conclusive absent manifest error so long as such determination is made
on a reasonable basis. The Borrowers shall pay the Agent or such Bank, as the
case may be, the amount shown as due on any such certificate within ten (10)
days after receipt thereof.
(c) The Borrowers agree at the time of or at any time following the
implementation of any changes to the European monetary union, to use reasonable
efforts to enter into an agreement amending this Agreement in order to reflect
the implementation of such changes, and to place the Banks and the Borrowers in
the position with respect to the settlement of payments of the Euro as they
would have been with respect to the settlement of the Optional Currency it
replaced.
2.22 Foreign Borrower Obligations. (a) Notwithstanding the joint and
several liability of the Borrowers under this Agreement, the obligations of each
Foreign Borrower on account of principal and interest and Reimbursement
Obligations shall be limited to the principal amount advanced to such Foreign
Borrower and its Subsidiaries and reimbursement of draws under Letters of Credit
issued for the account of such Foreign Borrower and its Subsidiaries and, in
each case, interest thereon. Each Foreign Borrower shall be liable only for its
pro rata share of all fees and expenses and other sums due hereunder (other than
principal and interest on the Loans) based upon the ratio of Loans outstanding
to such Foreign Borrower to the total amount of Loans outstanding hereunder.
(b) Any Foreign Borrower may from time to time deliver a termination notice
to the Agent requesting that it no longer be a party hereto. Such termination
shall be effective two Business Days after receipt by the Agent so long as all
obligations of such Foreign Borrower hereunder have been paid in full (including
principal, interest and other amounts) and no Letter of Credit issued for the
account or benefit of such Foreign Borrower is outstanding; provided that, to
the extent this Agreement provides for the survival of certain provisions upon
termination hereof, such surviving provisions shall survive a termination under
this subsection with respect to any such Foreign Borrower. Following receipt of
such notice, no further Loans may be borrowed by such Foreign Borrower
hereunder, unless such Foreign Borrower shall thereafter rejoin this Agreement
as a Borrower pursuant to the joinder provisions of Section 5.9 hereof.
2.23 Change of Lending Office. Each Bank agrees that, upon the occurrence
of any event giving rise to the operation of Sections 2.16 or 2.17 with respect
to such Bank, it will, if requested by the Borrowers, use reasonable efforts
(subject to overall policy considerations of such Bank) to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; provided, that such designation is made on terms
that, in the sole judgment of such Bank, cause such Bank and its lending
office(s) to suffer no economic, legal, regulatory or other disadvantage, and
provided, further, that nothing in this Section shall affect or delay the
required performance of any of the obligations of the Borrowers or the rights of
any Bank pursuant to Sections 2.16 or 2.17.
2.24. Substitution of Banks. Upon the receipt by the Borrowers from any
Bank (an "Affected Bank") of a notice under Section 2.13(b) or a claim under
Section 2.16 or 2.17, the Borrowers may: (a) request one or more of the other
Banks to acquire and assume all or part of such Affected Bank's Loans and
Commitment; or (b) replace such Affected Bank by designating another bank or
financial institution that is willing to acquire such Loans and assume such
Commitment; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Default or Event of Default shall have occurred and
be continuing at the time of such replacement, (iii) the replacement bank or
institution shall purchase, at par, all Loans, accrued interest and other
amounts owing to such replaced Bank on and as of the date of replacement, (iv)
the Borrowers shall be liable to such replaced Bank under Section 2.18 if any
LIBOR Loan owing to such replaced Bank shall be prepaid (or purchased) other
than on the last day of the Interest Period relating thereto and shall pay any
such amounts to such Bank on the date of such replacement, (v) the replacement
bank or institution, if not already a Bank, shall be reasonably satisfactory to
the Agent, (vi) the replaced Bank shall be obligated to make such replacement in
accordance with the provisions of Section 9.6 (provided that the Borrowers or
replacement Bank shall be obligated to pay the registration and processing fee)
and (vii) the Borrowers shall pay all additional amounts (if any) required
pursuant to Sections 2.16 or 2.17, as the case may be, to the extent such
additional amounts were incurred on or prior to the consummation of such
replacement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Banks to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, each of the
Borrowers hereby represents and warrants to the Agent and each Bank that:
3.1 Financial Condition.
(a) The consolidated balance sheet of the Company and its consolidated
Subsidiaries as at December 31, 1999 and the related consolidated statements of
income and of cash flows for the period ended on such date, copies of which have
heretofore been furnished to each Bank, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the period then ended. All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved. Neither the Company
nor any of its consolidated Subsidiaries had, at the date of the most recent
balance sheet referred to above, any material Guaranty Obligation, liability for
taxes, or any long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is required by GAAP to be but is not reflected in
the foregoing statements or in the notes thereto.
(b) The unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at March 31, 2000 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Bank, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved. Neither the Company nor any of its
consolidated Subsidiaries had, at the date of the balance sheet referred to
above, any material Guaranty Obligation, liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is
required by GAAP to be but is not reflected in the foregoing statements or in
the notes thereto.
3.2 No Change. Since December 31, 1999, there has been no development or
event nor any prospective development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the Borrowers and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate or other
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified to transact business and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect, and (d) is in compliance with all Requirements
of Law except to the extent that its failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. Each of the
Borrowers has the corporate or other power, authority, and legal right to make,
deliver and perform this Agreement, the Applications and each other Loan
Document to which it is a party and to borrow hereunder and has taken all
necessary corporate or other action to authorize the Extensions of Credit on the
terms and conditions of this Agreement and each other Loan Document to which it
is a party and to authorize the execution, delivery and performance of this
Agreement and each other Loan Document to which it is a party. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person (including stockholders and creditors of the
Borrowers) is required in connection with the Extensions of Credit hereunder or
with the execution, delivery, performance, validity or enforceability of this
Agreement, the Notes, the Applications or any other Loan Document. This
Agreement has been and each other Loan Document to which it is a party will be,
duly executed and delivered on behalf of such Borrower. This Agreement
constitutes and each other Loan Document when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrowers party thereto
enforceable against such Borrowers in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement, the Notes, the Applications and the other Loan Documents by the
Borrowers, the Extensions of Credit extended hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of any Borrower or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any properties or revenues of
any Borrower pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrowers, threatened against any Borrower or any of their
respective Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to this Agreement, the Notes, the other Loan Documents
or any of the transactions contemplated hereby, or (b) as to which there is a
reasonable likelihood of an adverse determination and which, if adversely
determined, could have a Material Adverse Effect.
3.7 No Default. Neither the Company, any other Borrower nor any of its or
their Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8 Taxes. Each of the Borrowers has filed or caused to be filed all tax
returns which, to its knowledge, are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves, if any, in
conformity with GAAP have been provided on the books of the Company or its
Subsidiaries, as the case may be); no federal tax Lien has been filed against
any of the Borrowers or any of their Subsidiaries.
3.9 Federal Regulations. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U or for any purpose which violates
the provisions of Regulation U or any other Regulations of the Board of
Governors of the Federal Reserve System. If requested by any Bank or the Agent,
the Borrowers will furnish to the Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of FR Form U-l referred to
in said Regulation U. No part of the proceeds of the Loans hereunder will be
used for any purpose which violates, or which is inconsistent with, the
provisions of Regulation X.
3.10 ERISA. Each Plan (such representations in respect of any Multiemployer
Plan being made to the best knowledge of each Borrower) has complied in all
material respects with the applicable provisions of ERISA and the Code. No
prohibited transaction or accumulated funding deficiency (each as defined in
subsection 7.1(i)) or Reportable Event has occurred with respect to any Single
Employer Plan. The present value of all accrued benefits under each Single
Employer Plan of which any Borrower or a Commonly Controlled Entity is a sponsor
(based on those assumptions used to fund the Plans), as calculated by such
Borrower's actuaries, did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of
the assets of the Plans allocable to such benefits. Neither any Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and neither any Borrower nor any Commonly Controlled Entity
would become subject under ERISA to any liability if any Borrower or any such
Commonly Controlled Entity were to withdraw completely from any Multiemployer
Plan as of the valuation date most closely preceding the date this
representation is made or deemed made. Such Multiemployer Plans are neither in
Reorganization as defined in Section 4241 of ERISA nor Insolvent as defined in
Section 4245 of ERISA. The present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Borrowers and each Commonly
Controlled Entity for post-retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits. Neither any Borrower nor any Commonly
Controlled Entity has any or has received notice of any liability under the Coal
Industry Retiree Health Benefit Act of 1992. Neither a Reportable Event nor an
"accumulated funding deficiency" within the meaning of Section 412 of the Code
or Section 302 of ERISA has occurred during the five-year period to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan or Multiemployer Plan. No termination of a Single Employer Plan
has occurred, and no Lien on assets of any of the Borrowers or any Commonly
Controlled Entity in favor of the PBGC or a Plan has arisen during such
five-year period.
3.11 Investment Company Act. None of the Borrowers is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.12 Public Utility Holding Company Act. No Borrower is subject to
regulation as a "holding company", subject to regulation as an "affiliate" of a
"holding company", or subject to regulation as a "subsidiary company" of a
"holding company", in each case under the Public Utility Holding Company Act of
1935, as amended.
3.13 Environmental Matters. Except to the extent that all of the following
could not reasonably be expected to have a Material Adverse Effect:
(a) The Properties do not contain, and have not previously contained, in,
on, or under, including, without limitation, the soil and groundwater
thereunder, any Materials of Environmental Concern in amounts or concentrations
that constitute or constituted a violation of, or reasonably could give rise to
liability under Environmental Laws.
(b) The Properties and all operations and facilities at the Properties are
in compliance, and have in the last five years been in compliance with all
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the business operated by any Borrower or any Subsidiary thereof which could
interfere with the continued operation of any of the Properties or impair the
fair saleable value of any thereof. None of the Borrowers nor any of their
Subsidiaries have assumed any liability of any Person under Environmental Laws.
(c) Neither the Company nor any other Borrower nor any of their
Subsidiaries has received or is aware of any claim, notice of violation, alleged
violation, non-compliance, investigation or advisory action or potential
liability regarding environmental matters or compliance of Environmental Law
with regard to the Properties which has not been satisfactorily resolved by the
Company or such other Borrower or Subsidiary, nor is the Company nor any other
Borrower or Subsidiary aware or have reason to believe that any such action is
being contemplated, considered or threatened.
(d) Materials of Environmental Concern have not been generated, treated,
stored, transported, disposed of, at, on, from or under any of the Properties by
any of the Borrowers nor any of their Subsidiaries, nor have any Materials of
Environmental Concern been transferred by any of the Borrowers or any of their
Subsidiaries from the Properties to any other location except in either case in
the ordinary course of business of the Borrowers or any Subsidiary thereof in
compliance with all Environmental Laws and such that it could not reasonably be
expected to give rise to liability under any applicable Environmental Law.
(e) There are no governmental, administrative actions or judicial
proceedings pending or, to the best knowledge of each Borrower and its
Subsidiaries after reasonable inquiry, contemplated or threatened under any
Environmental Laws to which the Company or any Subsidiary is or will be named as
a party with respect to the Properties, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any of the Properties.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operation of the Company or any of its Subsidiaries in connection with the
Properties or otherwise in connection with the business operated by the Company
or any of its Subsidiaries in violation of or in amounts or in a manner that
could reasonably be expected to give rise to liability under any Environmental
Law.
3.14 No Material Misstatements. No financial statement, exhibit or schedule
furnished by or on behalf of any Borrower to the Agent or any Bank in connection
with the negotiation of this Agreement, any Note or any other Loan Document
contains any misstatement of fact, or omitted or omits to state any fact
necessary to make the statements therein not misleading under the circumstances
under which they were made or given, where such misstatement or omission would
be material to the interests of the Banks with respect to the performance of one
or more Borrowers of its or their obligations hereunder or thereunder.
3.15 Title to Properties. The Borrowers have good and marketable title to
or valid leasehold interest in all material properties, assets and other rights
which they purport to own or lease or which are reflected as owned or leased on
their respective books and records, free and clear of all Liens and encumbrances
except Permitted Liens, and subject to the terms and conditions of the
applicable leases, except for minor defects in title that do not interfere in
any material respect with their ability to conduct their businesses as presently
conducted. All leases of property are in full force and effect without the
necessity for any consent which has not previously been obtained upon
consummation of the transactions contemplated hereby unless the failure to be in
effect or to obtain such consent would not have a Material Adverse Effect.
3.16 Intellectual Property. Each of the Borrowers owns, or is licensed to
use, all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted (the
"Intellectual Property"), except for those as to which the failure to own or
license could not reasonably be expected to have a Material Adverse Effect. No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property, nor does such Borrower know of any
valid basis for any such claim which could reasonably be expected to have a
Material Adverse Effect. The use of such Intellectual Property by the Borrowers
and their Subsidiaries does not infringe the rights of any Person, except for
such claims and infringements that, in the aggregate, do not have a Material
Adverse Effect.
3.17 List of Subsidiaries. All of the Subsidiaries of each Borrower as of
the date hereof are listed on Schedule 3.17 to this Agreement under its name,
and the respective number of shares of authorized Capital Stock and issued and
outstanding Capital Stock are as set forth on such schedule.
3.18 Solvency. Each of the Borrowers is, and after receipt and application
of the initial Loans hereunder will be, solvent such that: (a) the fair value of
its assets (including without limitation the fair salable value of the goodwill
and other intangible property of such Borrower) is greater than the total amount
of its liabilities, including without limitation, Guaranty Obligations, (b) the
present fair salable value of its assets (including without limitation the fair
salable value of the goodwill and other intangible property of such Borrower) is
not less than the amount that will be required to pay the probable liability on
its debts as they become absolute and matured, and (c) it is able to realize
upon its assets and pay its debts and other liabilities and commitments
(including Guaranty Obligations) as they mature in the normal course of
business. Each Borrower (a) does not intend to, and does not believe that it
will, incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature, and (b) is not engaged in a business or transaction, or
about to engage in a business or transaction, for which its property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice and industry in which it is engaged.
3.19 Insurance. All insurance policies and bonds maintained by the
Borrowers and their Subsidiaries or any replacements thereof provide adequate
coverage from reputable and financially sound insurers in amounts sufficient to
insure the assets and risks of the Borrowers and their Subsidiaries in
accordance with prudent business practice in the industry of the Borrowers and
their Subsidiaries.
3.20 Year 2000. Prior to January 1, 2000, the Borrowers reviewed the areas
within its business and operations which could be adversely affected by, and
developed a program to address on a timely basis, the risk that certain computer
applications used by the Borrowers may be unable to recognize and perform
properly date-sensitive functions involving dates prior to and after December
31, 1999 (the "Year 2000 Problem"). The Year 2000 Problem did not result in, and
is not reasonably expected to result in, any Material Adverse Effect.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Closing. This Agreement shall become effective upon the
satisfaction of each of the following conditions precedent:
(a) Credit Agreement and Notes. The Agent shall have received (i) this
Agreement, (A) executed and delivered by a duly authorized officer of each
Borrower, with a counterpart for each Bank, and (B) executed and delivered by a
duly authorized officer of each Bank, (ii) for the account of each 364 Day Bank,
a 364 Day Note, (iii) for the account of each Five Year Bank, a Five Year Note
and (iv) a Swing Line Note for the account of the Swing Line Bank, in the case
of clauses (ii), (iii) and (iv) hereof, conforming to the requirements hereof
and executed by a duly authorized officer of each Borrower.
(b) Corporate Proceedings; No Default. The Agent shall have received, with
a counterpart for each Bank, a certificate of the Secretary or an Assistant
Secretary of each Borrower dated as of the Closing Date certifying (A) that
attached thereto is a true and complete copy of the resolutions, in form and
substance satisfactory to the Agent, of the Board of Directors of such Borrower
authorizing (i) the execution, delivery and performance of this Agreement, the
Notes and the other Loan Documents to which it is a party, and (ii) the
Extensions of Credit contemplated hereunder and that such resolutions attached
thereto have not been amended, modified, revoked or rescinded, (B) as to the
incumbency and specimen signature of each officer executing any Loan Document on
behalf of a Borrower and (C) that the representations contained in Section 3 are
true and correct, that the Borrowers are in compliance with all covenants
contained herein and there exists no Default or Event of Default after giving
effect to the initial Loans hereunder.
(c) Corporate Documents. The Agent shall have received, with a counterpart
for each Bank, true and complete copies of the articles or certificate of
incorporation certified by the Secretary of State or similar official of the
state of organization of each Borrower, and the by-laws of each Borrower, in
each case, certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such Borrower. The
documents and certifications of the Secretary or an Assistant Secretary
contemplated in this subsection may be included within the certificate
contemplated by subsection 4.1(b) above.
(d) Fees and Expenses. The Agent shall have received (i) the Closing Fee
and the fees required to be paid on the Closing Date pursuant to the Fee Letter
and (ii) all other fees and expenses due and payable hereunder on or before the
Closing Date (if then invoiced), including, without limitation, the reasonable
fees and expenses accrued through the Closing Date of Ballard Spahr Andrews &
Ingersoll, LLP, counsel to the Agent in connection with the transactions
contemplated by the Loan Documents.
(e) Legal Opinion. The Agent shall have received the executed legal opinion
of Dechert Price & Rhoads, counsel to the Borrowers, substantially in the form
of Exhibit E.
(f) Good Standing. The Agent shall have received certificates of good
standing, subsistence and/or status dated a recent date from the Secretary of
State or appropriate taxing or other authorities in the jurisdiction of
incorporation or organization of each Borrower other than Foreign Borrowers.
(g) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Agent, and the Agent shall have
received such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
4.2 Conditions to Each Extension of Credit. The agreement of each Bank to
make any Extension of Credit requested to be made by it on any date (including,
without limitation, its initial Extension of Credit) is subject to the
satisfaction of the following conditions precedent:
(a) Existing Credit Arrangements. On or before the initial Extension of
Credit, the Existing Credit Agreement shall have been terminated and all
Indebtedness thereunder shall have been repaid in full, all collateral (if any)
pledged to secure such Indebtedness shall be released and executed Uniform
Commercial Code termination statements shall either have been filed or be
provided to the Agent.
(b) Representations and Warranties. Each of the representations and
warranties made by each Borrower herein or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection herewith or therewith, shall be true and correct in all
material respects on and as of such date as if made on and as of such date.
(c) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the Extensions of Credit
requested to be made on such date. Each request by the Borrowers for an
Extension of Credit hereunder shall constitute a representation and warranty by
the Borrowers as of the date of such Extension of Credit that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Borrowers hereby agrees that, so long as either the 364 Day
Commitments or the Five Year Commitments remain in effect, any Note or Letter of
Credit remains outstanding and unpaid, or any other amount is owing to any Bank
or the Agent hereunder, such Borrower shall:
5.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event not later than 90 days after the
close of each fiscal year of the Company, a copy of the annual audit report for
such year for the Company and its consolidated Subsidiaries, including therein a
consolidated balance sheet of the Company and its consolidated Subsidiaries as
at the end of such fiscal year, and related consolidated statements of income
and retained earnings and changes in cash flows of the Company and its
consolidated Subsidiaries for such fiscal year, all in reasonable detail,
prepared in accordance with GAAP applied on a basis consistently maintained
throughout the period involved and with the prior year with such changes thereon
as shall be approved by the Company's independent certified public accountants,
such financial statements to be certified by PriceWaterhouseCoopers LLP or other
nationally recognized independent certified public accountants selected by the
Company, without a "going concern" or like qualification or exception or
qualification arising out of the scope of the audit (it being understood that
delivery of the Company's report on form 10-K as filed with the Securities and
Exchange Commission shall satisfy the provisions of this subsection); and
(b) as soon as available, but in any event not later than 45 days after the
end of each of the first three quarterly periods of each fiscal year of the
Company, unaudited consolidated financial statements of the Company and its
consolidated Subsidiaries, including therein (i) a consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of such fiscal
quarter, (ii) the related consolidated statements of income and retained
earnings of the Company and its consolidated Subsidiaries, and (iii) the related
consolidated statement of changes in cash flows of the Company and its
consolidated Subsidiaries all for the period from the beginning of such fiscal
quarter to the end of such fiscal quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the corresponding figures for the like period of the preceding fiscal year; all
in reasonable detail, prepared in accordance with GAAP applied on a basis
consistently maintained throughout the period involved and with prior periods
and accompanied by a certificate of a Responsible Officer of the Company stating
that the financial statements fairly present the financial condition of the
Company and its consolidated Subsidiaries as of the date and for the periods
covered thereby (subject to normal year-end audit adjustments) (it being
understood that delivery of the Company's report on form 10-Q as filed with the
Securities and Exchange Commission shall satisfy the provisions of this
subsection).
5.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements referred to
in subsection 5.1(a), a certificate of the Company's independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary for certifying such financial statements no knowledge
was obtained of any Default or Event of Default, except as specifically
indicated;
(b) concurrently with the delivery of the financial statements referred to
in subsections 5.1(a) and 5.1(b), a certificate of a Responsible Officer of the
Company (each a "Compliance Certificate") showing in detail the calculations
demonstrating compliance with the financial covenants set forth in Section 6.1,
together with a certificate of a Responsible Officer of the Company stating
that, to the best of his or her knowledge, each of the Borrowers during such
period has kept, observed, performed and fulfilled each and every covenant and
condition contained in this Agreement and in the Notes and the other Loan
Documents to which it is a party and that such officer has obtained no knowledge
of any Default or Event of Default except as specifically indicated; if the
Compliance Certificate shall indicate that such officer has obtained knowledge
of a Default or Event of Default, such Compliance Certificate shall state what
efforts the Borrowers are making to cure such Default or Event of Default; and
(c) promptly, such additional financial and other information as the Agent
or any Bank may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature (including but not limited to all taxes,
assessments and governmental charges and levies upon them or upon any of their
respective income, profits or property prior to the date on which penalties
attach thereto), except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Company or
its Subsidiaries, as the case may be.
5.4 Maintenance of Existence. Except as otherwise permitted in Section 6.3,
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary in the normal conduct of its business; comply with all Contractual
Obligations and Requirements of Law, except to the extent that failure to comply
therewith could not in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.5 Maintenance of Insurance; Property.
(a) Insure its properties and assets against loss or damage by fire and
such other insurable hazards as such assets are commonly insured (including
fire, extended coverage, property damage, worker's compensation, public
liability and business interruption insurance) and against other risks in such
amounts as similar properties and assets are insured by prudent companies in
similar circumstances carrying on similar businesses, and with reputable and
financially sound insurers, including self insurance to the extent customary.
(b) Maintain in good repair, working order and condition (ordinary wear and
tear and casualty excepted) in accordance with the general practice of other
businesses of similar character and size, all of those properties useful or
necessary to its business, and, from time to time, each of the Company and its
Subsidiaries will make or cause to be made all appropriate repairs, renewals or
replacements thereof, in each case, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in conformity with GAAP and all Requirements of
Law; and upon reasonable notice permit representatives of any Bank to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records during normal business hours and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Company and its Subsidiaries with officers and employees
of the Company and its Subsidiaries and with their independent certified public
accountants.
5.7 Notices. Promptly give notice to the Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
any Borrower or any Subsidiary thereof or (ii) litigation, investigation or
proceeding which may exist at any time between any Borrower or any Subsidiary
thereof and any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Borrower or any Subsidiary
thereof which, if adversely determined, could have a Material Adverse Effect, as
reasonably determined by the Company's corporate counsel;
(d) the following events, as soon as possible and in any event within 30
days after any Borrower knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, any Lien in favor of PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or any Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the terminating, Reorganization or Insolvency of, any Plan or (iii) an
assessment of liability under the Coal Industry Retiree Health Benefit Act of
1992; and
(e) an event which has had or could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrowers and their Subsidiaries propose to take
with respect thereto.
5.8 Environmental Laws.
(a) Comply with, and require compliance by all tenants and all subtenants,
if any, with, all Environmental Laws and obtain and comply with and maintain,
and require that all tenants and subtenants obtain and comply with and maintain,
any and all licenses, approvals, registrations or permits required by
Environmental Laws, except in each case to the extent that failure to so comply
or obtain or maintain such documents could not reasonably be expected to have a
Material Adverse Effect;
(b) Comply with all final lawful and binding orders and directives of all
Governmental Authorities respecting Environmental Laws; and
(c) Defend, indemnify and hold harmless the Agents and the Banks, and their
respective employees, agents, officers, directors, successors and assigns from
and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to any violation
of or noncompliance with or liability under any Environmental Laws, or any
orders, requirements or demands of Governmental Authorities related thereto
which in each case relate to or arise in connection with any Borrower or any of
their Subsidiaries, any Property or any activities relating to any other
property or business of a Borrower or its Subsidiaries or the enforcement of any
rights provided herein or in the other Loan Documents, including, without
limitation, attorneys' and consultants' fees, response costs, investigation and
laboratory fees, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
any of the foregoing enumerated parties. This indemnity shall continue in full
force and effect regardless of the termination of this Agreement and the payment
of the Notes.
5.9 Notice and Joinder of New Subsidiaries. Notify the Agent as soon as
practicable of its ownership of any Subsidiary that is not a Borrower in which
the aggregate amount of loans and investments made by the Borrowers in such
Subsidiary, or the assets of which, exceeds $5,000,000, and, unless such
Subsidiary is a Foreign Subsidiary, cause such Subsidiary to execute and deliver
to the Agent within sixty (60) days after the date such Subsidiary is acquired
or otherwise exceeds the $5,000,000 threshold set forth above, a Joinder and
Assumption Agreement pursuant to which it shall, among other things, become a
Borrower hereunder. Within sixty (60) days after the Closing Date, the Borrowers
shall cause West Pharmaceutical Services Cleveland, Inc., West Pharmaceutical
Services Canovanas, Inc., West Pharmaceutical Services of Delaware, Inc., West
Pharmaceutical Services Vega Alta, Inc. and Paco Laboratories, Inc. to become
Borrowers hereunder by executing and delivering to the Agent a Joinder and
Assumption Agreement. The Company may elect at any time to have any Foreign
Subsidiary become a Borrower hereunder (subject to the provisions of Section
2.22(a) hereof) by executing and delivering to the Agent a Joinder and
Assumption Agreement.
5.10 Use of Proceeds. Use the proceeds of the Loans (i) for working capital
and general corporate purposes in the ordinary course of business including to
pay all or a portion of the purchase price for Permitted Acquisitions and
repurchases of Capital Stock of the Company and (ii) to repay Indebtedness under
the Existing Credit Agreement.
5.11 Subsequent Credit Terms. Notify the Agent in writing prior to entering
into any new credit arrangement or any amendment or modification of any existing
credit arrangement, in each case providing debt financing of $5,000,000 or more,
pursuant to which any of the Borrowers agrees to (a) financial covenants, (b)
other than with respect to Capital Leases or purchase money financing,
limitations on liens or (c) limitations on incurring debt, which in any such
case are less favorable in any material respect to any of the Borrowers than
those contained in this Agreement (any such less favorable provisions, the "New
Provisions"). Effective upon any Borrower's entry into any such agreement,
amendment or modification, this Agreement, at the option of the Required Banks
in their sole discretion, shall be and shall be deemed to be immediately amended
to add the New Provisions (until such agreement is terminated and all amounts
owing thereunder are repaid, at which point the New Provisions shall no longer
be effective); provided, however, that the foregoing shall not be applicable to
or be deemed to affect any provision of this Agreement if any such agreement,
amendment or modification is more favorable to such Borrower. Each of the
Borrowers hereby agrees promptly to execute and deliver any and all such
documents and instruments and to take all such further actions as the Agent may,
in its sole discretion, deem necessary or appropriate to effectuate the
provisions of this Section 5.11.
SECTION 6. NEGATIVE COVENANTS
Each of the Borrowers hereby agrees that, so long as any Commitments remain
in effect, any Note or Letter of Credit remains outstanding and unpaid, or any
other amount is owing to any Bank or Agent hereunder, such Borrower shall not
and shall not permit any of its Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Leverage Ratio. As of the last day of any fiscal quarter of the
Company, permit the Leverage Ratio to be greater than .55 to 1.
(b) Interest Coverage Ratio. As of the last day of any fiscal quarter of
the Company commencing with the fiscal quarter ending June 30, 2000, permit the
Interest Coverage Ratio for the period of four consecutive fiscal quarters
ending on such date to be less than 2.50 to 1.
6.2 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for Permitted Liens.
6.3 Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except that:
(a) any Subsidiary of the Company may be merged or consolidated with or
into the Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any Borrower (provided that such Borrower shall be
the continuing or surviving corporation or such surviving or continuing
corporation becomes a Borrower hereunder); and
(b) any Subsidiary of the Company may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
(i) to a Borrower, (ii) to any Subsidiary (other than a Foreign Subsidiary) not
required under Section 5.9 to be a Borrower hereunder both immediately before
and after such transaction, or (iii) as permitted by Section 6.4 of this
Agreement; and
(c) subject to the terms of Section 5.9 hereof, any Subsidiary of the
Company that is not a Borrower may be merged or consolidated with any other
Subsidiary of the Company which is not a Borrower;
provided, that immediately after any such transaction referred to in paragraphs
(a), (b) and (c) above and after giving effect thereto, each of the Borrowers is
in compliance with this Agreement and no Default or Event of Default shall have
occurred and be continuing or result from such transaction.
6.4 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests and Capital Stock or equity
interests in any Subsidiary that is or is required to be a Borrower hereunder),
whether now owned or hereafter acquired, except:
(a) any sale, transfer or lease of assets in the ordinary course of
business which are no longer necessary or required in the conduct of the
Borrowers' or their Subsidiaries' business;
(b) transactions involving the sale or lease of inventory in the ordinary
course of business;
(c) the sale or discount without recourse of accounts receivable arising in
the ordinary course of business in connection with the compromise or collection
in the ordinary course of business of such accounts receivable;
(d) as permitted by Section 6.3; and
(e) in addition to the above subsections 6.4(a) through 6.4(d),
conveyances, sales, leases, assignments, transfers or other dispositions of
assets of the Borrowers or any Subsidiary thereof; provided, that the aggregate
amount of such conveyances, sales, leases, assignments, transfers and other
dispositions, determined in accordance with GAAP, in any fiscal year of the
Company does not exceed ten percent (10%) of the Company's consolidated total
assets as of the beginning of such fiscal year, and provided, further, that such
conveyances, sales, leases, assignments, transfers or other dispositions are for
consideration which the officers or Board of Directors of the applicable
Borrower or Subsidiary deems to be fair and reasonable.
6.5 Limitation on Distributions. At any time make (or incur any liability
to make) or pay any Distribution (whether in cash or property or obligations of
a Borrower or any Subsidiary thereof) in respect of the Borrowers or any
Subsidiary thereof (other than a Distribution payable to the Company or from a
Subsidiary to another Subsidiary), unless as of the declaration date after
giving effect to the declaring, paying or making of any such Distribution, no
Default or Event of Default would exist.
6.6 Transactions with Affiliates. Except as expressly permitted in this
Agreement or between the Company and any Subsidiary or between Subsidiaries,
directly or indirectly enter into any transaction or arrangement whatsoever
(including without limitations any purchase, sale, lease or exchange of property
or the rendering of any service) or make any payment to or otherwise deal with
any Affiliate, except, as to all of the foregoing in the ordinary course of and
pursuant to the reasonable requirements of such Borrower's and its Subsidiaries'
business and upon fair and reasonable terms no less favorable to such Borrower
or such Subsidiary, as the case may be, than would be obtained in a comparable
arm's length transaction with a Person not an Affiliate.
6.7 Priority Debt. Permit, at any time, Priority Debt to exceed 18% of the
sum of (a) Total Debt at such time and (b) shareholders' equity for the Company
and its Subsidiaries determined on a consolidated basis in accordance with GAAP
as of the end of the most recently completed fiscal quarter of the Company for
which financial statements have been delivered to the Banks pursuant to Section
5.1(a) or (b), as the case may be.
6.8 Limitation on Acquisitions. Purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) all or any substantial
amount of the property or assets (including, without limitation, Capital Stock)
of any Person except for Permitted Acquisitions.
6.9 Fiscal Year. Permit the fiscal year of a Borrower to end on a day other
than December 31.
6.10 Limitation on Conduct of Business. Permit the general nature of the
business of the Borrowers and their Subsidiaries, taken as a whole, to be
substantially changed from the general nature of the businesses in which the
Borrowers and their Subsidiaries are engaged on the date of this Agreement.
SECTION 7. EVENTS OF DEFAULT
7.1 Events of Default. If any of the following events shall occur and be
continuing:
(a) A Borrower (i) shall fail to pay when due any principal on any Note or
any Reimbursement Obligation when due, or (ii) shall fail to pay any other
amount payable hereunder or thereunder (including without limitation any fees)
within five (5) Business Days after the date due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by a Borrower herein
or in any other Loan Document or which is contained in any certificate or
financial statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect or misleading in any material
respect on or as of the date made or deemed made; or
(c) A Borrower shall default in the observance or performance of any
agreement contained in Section 6 of this Agreement; or
(d) A Borrower shall default in the observance or performance of any other
agreement contained in this Agreement (other than as provided in subsections (a)
through (c) above) or any other Loan Document, and such default shall continue
unremedied (if it is capable of being remedied in such period) for a period of
thirty (30) days with respect to Sections 5.3, 5.4 or 5.8 of this Agreement and
five (5) Business Days with respect to all other applicable provisions; or
(e) A Borrower or any Subsidiary thereof shall (i) default in the payment
of any principal of or interest on or any other amount payable on any
Indebtedness (other than the Notes) or in the payment of any Guaranty
Obligation, beyond the period of grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such Indebtedness or Guaranty
Obligation was created and the aggregate amount of such Indebtedness and/or
Guaranty Obligations in respect of which such default or defaults shall have
occurred is at least $10,000,000; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guaranty Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is (x)
with respect to Section 10.3 of the Note Purchase Agreement or any similar
covenant, to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guaranty Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to become due and payable prior to its stated maturity or such
Guaranty Obligation to become payable, with the giving of notice if required,
and (y) with respect to all other defaults, events or conditions, to cause such
Indebtedness to become due and payable prior to its stated maturity or such
Guaranty Obligation to become payable; or
(f) (i) A Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or a Borrower or any of
its Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against a Borrower or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against a
Borrower or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged,
satisfied, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) a Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) a Borrower
or any of its Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they generally become due;
or
(g) One or more judgments or decrees shall be entered against a Borrower or
any of its Subsidiaries involving in the aggregate a liability (excluding any
such judgments or orders which are fully covered by insurance, subject to any
customary deductible, and under which the applicable insurance carrier has
acknowledged such full coverage in writing) of $10,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, settled, satisfied
or paid, or stayed or bonded pending appeal, within 30 days from the entry
thereof; or
(h) Any Change of Control shall occur; or
(i) Without limiting the covenants and representations made herein relating
ERISA matters (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Company or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Banks is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist in regard to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(j) the Company shall cease to own, directly or indirectly, one hundred
percent (100%) of the legal and beneficial ownership of each other Borrower
except for directors qualifying shares or pursuant to a transaction permitted
under Section 6.3 or Section 6.4;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to a Borrower,
automatically the Total Commitments (including the obligations of the Issuing
Bank to issue Letters of Credit and the Banks to participate therein) shall
immediately terminate, and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement, the Notes and the other Loan
Documents shall automatically and immediately become due and payable (including,
without limitation, all Letter of Credit Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder), and (B) if such event is any other Event of
Default, with the consent of the Required Banks, the Agent may, or upon the
written request of the Required Banks, the Agent shall, (i) by notice to the
Company declare the Total Commitments to be terminated forthwith, whereupon the
Total Commitments and the obligations of the Banks to make Loans, and the
obligation of the Issuing Bank to issue Letters of Credit and the Banks to
participate in any Letters of Credit thereafter issued shall immediately
terminate; (ii) by notice of default to the Company, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement, the Notes and the other Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable
(including, without limitation, all Letter of Credit Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder); and/or (iii) by notice to the Company
require the Borrowers to, and the Borrowers shall thereupon, deposit in a
non-interest bearing account with the Agent, as cash collateral for their
obligations under this Agreement, the Notes and the Applications, an amount
equal to the Letter of Credit Coverage Requirement, and the Borrowers hereby
pledge to the Agent and the Banks, and grant to the Agent and the Banks a
security interest in, all such cash as security for such obligations. Amounts
held in such cash collateral account shall be applied by the Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrowers
hereunder and under the Notes. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrowers hereunder and under the
Notes shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Company. The Borrowers shall execute and
deliver to the Agent, for the account of the Issuing Bank and the Letter of
Credit Participants, such further documents and instruments as the Agent may
request to evidence the creation and perfection of the within security interest
in such cash collateral account. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and appoints PNC
Bank, National Association as the Agent of such Bank under this Agreement and
the other Loan Documents, and each such Bank irrevocably authorizes PNC Bank,
National Association, as the Agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement and the other Loan
Documents, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein or therein, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement and the other Loan Documents or
otherwise exist against the Agent. PNC Bank, National Association agrees to act
as the Agent on behalf of the Banks to the extent provided in this Agreement and
the other Loan Documents.
8.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to engage and pay for the advice and
services of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible to the Banks for the negligence or misconduct of any
agents or attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (a)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or the other Loan Documents (except
for its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by a Borrower or any officer thereof
contained in this Agreement, the other Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, the Notes or the other Loan Documents or for any failure of the
Borrowers (or any of them) to perform their obligations hereunder or thereunder.
The Agent shall not be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or the other Loan Documents, or to inspect
the properties, books or records of the Borrowers (or any of them).
8.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, facsimile, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to one or more of the Borrowers), independent
accountants and other experts selected by such Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or refusing
to take any action under this Agreement or the other Loan Documents unless it
shall first receive such advice or concurrence of the Required Banks as it deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement,
the Notes or the other Loan Documents in accordance with a request of the
Required Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the Notes.
8.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless it
has received notice from a Bank or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Banks; provided, that unless and until the Agent shall have
received such directions, it may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Agent and Other Banks. Each Bank expressly acknowledges
that neither the Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter taken, including any
review of the affairs of the Borrowers, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its Loans hereunder and enter into
this Agreement and each other Loan Document to which it is a party. Each Bank
also represents that it will, independently and without reliance upon the Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrowers which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Agent in its capacity
as such (to the extent not reimbursed by the Borrowers and without limiting the
obligation, if any, of the Borrowers to do so) in Dollars, ratably according to
their respective Total Commitment Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement, the other Loan Documents, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided, that no Bank shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. The
agreements in this Section 8.7 shall survive the payment of the Notes and all
other amounts payable hereunder.
8.8 Agent in Its Individual Capacity. The Agent and its Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrowers (or any of them) as though the Agent were not the Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it and
with respect to any Letter of Credit issued or participated in by it, the Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Bank and may exercise the same as though it were not the Agent,
and the terms "Bank" and "Banks" shall include the Agent in its individual
capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 30 days' notice to
the Banks and the Borrowers. If the Agent shall resign as Agent under this
Agreement, then the Required Banks shall appoint from among the Banks a
successor agent for the Banks, which appointment shall be subject to the
approval of the Borrowers (which approval shall not be unreasonably withheld and
shall not be required if there shall then exist a Default or Event of Default).
If no successor agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 60 days after the retiring Agent's
giving of notice of resignation then the retiring Agent may, on behalf of the
Banks, appoint an interim successor agent. Any interim successor agent appointed
under the preceding sentence may be replaced at any time by a successor agent
designated by the Required Banks and subject to the approval of the Borrowers
(which approval shall not be unreasonably withheld and shall not be required if
there shall then exist a Default or Event of Default). Any such successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation as Agent, the provisions of this Section 8.9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
8.10 Beneficiaries. Except as expressly provided herein, the provisions of
this Section 8 are solely for the benefit of the Agent and the Banks, and the
Borrowers shall not have any rights to rely on or enforce any of the provisions
hereof. In performing its functions and duties under this Agreement and the
other Loan Documents, the Agent shall act solely as agent of the Banks and does
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrowers.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any Note any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section. With the
written consent of the Required Banks, the Agent and the Borrowers may, from
time to time, enter into written amendments (including letter amendments),
supplements or modifications hereto and to the Notes and the other Loan
Documents for the purpose of adding any provisions to this Agreement, the Notes
or any other Loan Document or changing in any manner the rights of the Banks or
of the Borrowers hereunder or thereunder or waiving, on such terms and
conditions as the Agent may specify in such instrument, any of the requirements
of this Agreement, the Notes or any other Loan Document or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall directly or indirectly (a)
reduce the amount or extend the maturity of any Note, any Loan or any
installment thereof, or reduce the rate of interest or extend the time of
payment of interest thereon, or reduce any fee payable to any Bank hereunder or
extend the period for payment thereof, or change the duration or the amount of
any Bank's 364 Day Commitment and/or Five Year Commitment in each case without
the consent of the Bank affected thereby or (b) or amend, modify or waive any
provision of this Section or reduce the percentage specified in the definition
of Required Banks, or consent to the assignment or transfer by the Borrowers of
any of their rights and obligations under this Agreement, the Notes and the
other Loan Documents, in each case without the written consent of all the Banks,
or (c) amend, modify or waive any provision of Section 2.1(d) or any other
provision affecting Swing Line Loans without the written consent of the then
Swing Line Bank, or (d) amend, modify or waive any provision of Section 2.8 or
any other provisions affecting Letters of Credit without the written consent of
the Issuing Bank, or (e) amend, modify or waive any provision of Section 8
without the written consent of the then Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon the Borrowers, the Banks, the Agent and all future
holders of the Notes. In the case of any waiver, the Borrowers, the Banks and
the Agent shall be restored to their former position and rights hereunder and
under the outstanding Notes, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
9.2 Notices; Lending Offices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
electronic transmission, facsimile transmission or posting on a secured Web
site), and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of facsimile
transmission notice, when sent during normal business hours with electronic
confirmation or otherwise when received, or in the case of electronic
transmission, when received and in the case of posting on a secured Web site,
upon receipt of (i) notice of such posting and (ii) rights to access such Web
site, addressed as follows in the case of the Borrowers, and the Agent, the
Swing Line Bank or the Issuing Bank, and as set forth in Schedule I in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Borrowers c/o West Pharmaceutical Services, Inc.
or any of them: 101 Gordon Drive
Lionville, PA 19341
Attention: Stephen M. Heumann
Facsimile: 610-594-3014
The Agent, PNC Bank, National Association
the Swing Line 1000 Westlakes Drive, Suite 200
Bank or the Berwyn, PA 19312
Issuing Bank: Attention: Amy T. Petersen
Facsimile: (610) 725-5799
with a copy to: PNC Bank, National Association
One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, PA 15222
Attention: Arlene Ohler
Facsimile: 412-762-8672
provided that (a) any notice, request or demand to or upon the Agent, the
Issuing Bank or the Banks pursuant to Sections 2.4, 2.5, 2.8, 2.14 and 2.15 or
to or upon the Swing Line Bank, shall not be effective until received and (b)
any notice of a Default or Event of Default hereunder shall be sent by facsimile
or nationally recognized overnight courier. Schedule I lists the Lending Offices
of each Bank. Each Bank may change its Lending Office by written notice to the
other parties hereto.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Notes and the other Loan Documents.
9.5 Payment of Expenses and Taxes. Each of the Borrowers jointly and
severally agrees (a) to pay or reimburse the Agent for all its out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and the syndication of, this Agreement, the Notes, the other Loan
Documents and any other documents executed and delivered in connection herewith,
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Agent, (b) to pay or reimburse the Agent for all its out-of-pocket costs
and expenses incurred in connection with any amendment, supplement or
modification to this Agreement, the Notes and the other Loan Documents and any
other documents executed and delivered in connection therewith, and the
administration of the Facilities, including without limitation, the reasonable
fees and disbursements of counsel, (c) pay or reimburse the Bank and each Agent
for all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the other Loan
Documents and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Agent and to the several
Banks, (d) to pay, indemnify, and hold each Bank and the Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes, the other Loan
Documents and any such other documents, and (e) to pay, indemnify, and hold each
Bank and the Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions (whether sounding in contract,
in tort or on any other ground), judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of or in any other way
arising out of or relating to, this Agreement, the Notes, the other Loan
Documents or any such other documents contemplated by or referred to herein or
therein or any action taken by any Bank or the Agent with respect to the
foregoing including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Laws applicable to the operations of the
Borrowers or their Subsidiaries (all the foregoing, collectively, the
"indemnified liabilities"), provided, that the Borrowers shall have no
obligation hereunder to the Agent or any Bank with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
person. The agreements in this Section shall survive repayment of the Notes and
all other amounts payable hereunder.
9.6 Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and permitted assigns
of such party; and all covenants, promises and agreements by or on behalf of a
Borrower, the Agent or the Banks that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns. The
Borrowers may not assign or transfer any of their rights or obligations under
this Agreement or the other Loan Documents without the prior written consent of
each Bank.
(b) Each Bank may, in accordance with applicable law, sell to any Bank or
Affiliate thereof and, with the consent of the Company and the Agent (which
consents shall not be unreasonably withheld or delayed), to one or more banks or
other financial institutions (each, a "Purchasing Bank") all or any part of its
interests, rights and obligations under this Agreement, the Notes and the other
Loan Documents (including all or a portion of its Total Commitment and the Loans
at the time owing to it and the Notes held by it); provided, however, that (i)
so long as the 364 Day Commitments or Five Year Commitments are in effect, such
assignment shall be in an amount not less than $5,000,000 (or such lesser amount
as the Company and the Agent shall agree in their sole discretion), (ii) the
parties to each such assignment shall execute and deliver to the Agent and the
Company for its acceptance an Assignment and Acceptance, together with the 364
Day Note and Five Year Note subject to such assignment and a processing and
recordation fee of $3,000; provided that no fee shall be payable with respect to
any assignment by a Bank to an Affiliate thereof, (iii) unless otherwise agreed
by the Agent and the Company in their sole discretion, such assignment shall be
of all or a pro rata portion of such assigning Bank's 364 Day Commitment and
Five Year Commitment and the Loans (other than Swing Line Loans) thereunder
(i.e. no Bank may sell a non-pro rata interest) and (iv) the Swing Line
Commitment and all outstanding Swing Line Loans may only be assigned in their
entirety to a Bank then having a Five Year Commitment. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.6, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) such
Purchasing Bank shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Bank under this Agreement and (B) the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement and the other Loan Documents, such Bank
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.16, 2.17, 2.18, 2.19, 5.8(c) and 9.5 (to the extent that
such Bank's entitlement to such benefits arose out of such Bank's position as a
Bank prior to the applicable assignment). To the extent that an assignment of
all or any portion of a Bank's rights and obligations pursuant to this Section
9.6 would, at the time of such assignment, result in increased costs under
Section 2.16 or 2.17 compared to those being charged by the assigning Bank prior
to such assignment, then the Borrowers shall not be obligated to pay the
Purchasing Bank such excess increased costs (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the assignment). Such Assignment and Acceptance
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the resulting
amounts and percentages held by the Banks arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
assigning Bank under this Agreement, the Notes and the other Loan Documents.
Notwithstanding any provision of this Section 9.6, the consent of the Company
shall not be required for any assignment which occurs at any time when an Event
of Default shall have occurred and be continuing.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Bank thereunder and the Purchasing Bank thereunder shall be deemed to confirm to
and agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby, free and clear of any adverse claim and that
its 364 Day Commitment and/or Five Year Commitment, and the outstanding balances
of its Loans, without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto, or the financial
condition of the Borrowers or any Subsidiary thereof or the performance or
observance by the Borrowers or any Subsidiary thereof of any of its or their
obligations under this Agreement or the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
Purchasing Bank represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such Purchasing Bank confirms that it
has received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.1 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such Purchasing Bank
will independently and without reliance upon the Agent, such assigning Bank or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents; (vi) such
Purchasing Bank appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
Purchasing Bank agrees that it will perform in accordance with their terms all
the obligations which by the terms of this Agreement and the other Loan
Documents are required to be performed by it as a Bank including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to Section 2.17 to deliver the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Purchasing
Bank's exemption from United States withholding taxes with respect to all
payments to be made to the Purchasing Bank under this Agreement.
(d) The Agent shall maintain at its offices in Philadelphia, Pennsylvania a
copy of each Assignment and Acceptance and the names and addresses of the Banks,
and the Total Commitments of, and principal amount of the Loans owing to, each
Bank pursuant to the terms hereof from time to time. Such information maintained
by the Agent shall be conclusive in the absence of manifest error and the
Borrowers, the Agent and the Banks may treat each Person whose name is recorded
pursuant to the terms hereof as a Bank hereunder for all purposes of this
Agreement.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Bank and a Purchasing Bank (and in the case of a Purchasing Bank
that is not then a Bank or an Affiliate thereof, by the Company and the Agent)
together with the Note or Notes subject to such assignment and the processing
and recordation fee referred to in paragraph (b) above, the Agent shall promptly
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein and (iii) give notice thereof to the Banks. Within five Business Days
after receipt of notice, the Borrowers, at their own expense, shall execute and
deliver to the Agent, in exchange for the surrender of the original Note(s) (A)
with respect to the assignment of Loans of any Bank, a new Note to the order of
such Purchasing Bank in an amount equal to the amount of each applicable
commitment assumed and (B) if the assigning Bank has retained a 364 Day
Commitment and/or Five Year Commitment, a new Note or Notes to the order of such
assignor in the amount equal to each applicable Commitment retained by it. Such
new Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note(s); such new Notes shall be dated the
date of the surrendered Notes which they replace and shall otherwise be in
substantially the form of Exhibit A-1 or Exhibit A-2 hereto, as applicable.
Canceled Notes shall be returned to the Company.
(f) Each Bank may without the consent of the Company or the Agent sell
participations to one or more banks or other entities (each a "Participant") in
any Loan owing to such Bank, any Note held by such Bank, any Commitment of such
Bank or any other interest of such Bank hereunder and under the other Loan
Documents, provided, however, that (i) such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Bank shall remain the holder of any
such Note for all purposes under this Agreement and the other Loan Documents,
(iv) the Borrowers, the Banks and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and the other Loan Documents, (v) in any proceeding under
the Bankruptcy Code such Bank shall be, to the extent permitted by law, the sole
representative with respect to the obligations held in the name of such Bank,
whether for its own account or for the account of any Participant, (vi) such
Bank shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of this
Agreement or the Note or Notes held by such Bank or any other Loan Document,
other than any such amendment, modification or waiver with respect to any Loan
or Commitment in which such Participant has an interest that forgives principal,
interest or fees or reduces the interest rate or fees payable with respect to
any such Loan or Commitment, postpones any date fixed for any regularly
scheduled payment of principal of, or interest or fees on, any such Loan or
releases any guarantor of such Loan.
(g) If amounts outstanding under this Agreement and the Notes are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement
or any Note, provided that in purchasing such participation such Participant
shall be deemed to have agreed to share with the Banks the proceeds thereof as
provided in Section 9.8. The Borrowers also agree that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17, 2.18, 2.19, 5.8(c) and 9.5 with
respect to its participation in the Total Commitments and the Loans outstanding
from time to time; provided, that no Participant shall be entitled to receive
any greater amount pursuant to such Sections than the assigning Bank would have
been entitled to receive in respect of the amount of the participation
transferred by such assigning Bank to such Participant had no such transfer
occurred.
(h) If any Participant of a Bank is organized under the laws of any
jurisdiction other than the United States or any state thereof, the assigning
Bank, concurrently with the sale of a participating interest to such
Participant, shall cause such Participant (i) to represent to the assigning Bank
(for the benefit of the assigning Bank, the other Banks, the Agent and the
Borrowers) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, the Borrowers or the assigning Bank with respect to
any payments to be made to such Participant in respect of its participation in
the Loans and (ii) to agree (for the benefit of the assigning Bank, the other
Banks, the Agent and the Borrowers) that it will deliver the tax forms and other
documents required to be delivered pursuant to subsection 2.17(f) and comply
from time to time with all applicable U.S. laws and regulations with respect to
withholding tax exemptions.
(i) Any Bank may at any time assign all or any portion of its rights under
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release a Bank from any of its obligations
hereunder.
9.7 Disclosure of Information. Unless otherwise consented to by the Company
in writing, each of the Banks and the Agent agrees to use reasonable precautions
to keep confidential, in accordance with its customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrowers pursuant to this Agreement; provided that nothing herein shall limit
the disclosure of any such information (a) to the extent required by statute,
rule, regulation or judicial process, (b) to counsel for any Bank or the Agent,
(c) to bank examiners, auditors or accountants, (d) to the Agent or any other
Bank, (e) in connection with any litigation to which any one or more of the
Banks or the Agent is a party and (f) to any Participant or Purchasing Bank (or
prospective Participant or Purchasing Bank) so long as such Participant or
Purchasing Bank (or prospective Participant or Purchasing Bank) agrees to comply
with the requirements of this section.
9.8 Adjustments; Set-off.
(a) Except as provided in subsection 2.14(d) with respect to the 364 Day
Loans of a Declining Bank, if any Bank (a "benefitted Bank") shall at any time
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in subsection 7.1(f), or otherwise), in a
greater proportion than its Ratable Share of any such payment to or collateral
received by any other Bank, if any, in respect of such other Bank's Loans or the
Reimbursement Obligations owing to it, or interest thereon, such benefitted Bank
shall purchase for cash from the other Banks such portion of each such other
Bank's Loans owing to it, or shall provide such other Banks with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Bank to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Banks; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest unless
the benefitted Bank is required to pay interest thereon, in which case each Bank
returning funds to the benefitted Bank shall pay its pro rata share of such
interest. Each of the Borrowers, jointly and severally agrees that each Bank so
purchasing a portion of another Bank's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law,
upon the occurrence and during the continuance of an Event of Default, each Bank
shall have the right, without prior notice to the Borrowers (or any of them),
any such notice being expressly waived by the Borrowers to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrowers
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank to or for the credit or the
account of one or more Borrowers. Each Bank agrees promptly to notify the
Company and the Agent after any such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
9.9 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company, on behalf of the Borrowers, and each of the
Banks.
9.10 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.11 Integration. This Agreement and the other Loan Documents represent the
agreement of the parties hereto with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the Agent
or any Bank relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
9.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.13 Submission To Jurisdiction; Waivers. Each of the Borrowers hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement or the Notes, or for recognition and enforcement of
any judgement in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the Commonwealth of Pennsylvania, the courts of the United States
of America for the Eastern District of Pennsylvania, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Company at its
address set forth in Section 9.2 or at such other address of which the Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
9.14 Acknowledgments. Each of Borrowers hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Notes and the other Loan Documents;
(b) neither the Agent nor any Bank has any fiduciary relationship to the
Borrowers (or any of them) and the relationship hereunder between the Agent and
Banks, on the one hand, and the Borrowers, on the other hand, is solely that of
debtor and creditor; and
(c) no joint venture exists among the Banks or among the Borrowers (or any
of them) and the Banks.
9.15 No Right of Contribution. On and after the occurrence of an Event of
Default hereunder, no Borrower shall seek or be entitled to any reimbursement
from any other Borrower, or be subrogated to any rights of the Banks against the
Borrowers, in respect of any payments made pursuant to the Loan Documents, until
all amounts owing to the Banks hereunder and under the Notes are paid in full.
9.16 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND THE BANKS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT
AND FOR ANY MANDATORY COUNTERCLAIM THEREIN.
<PAGE>
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
WEST PHARMACEUTICAL SERVICES, INC.
By: ________________________________
Name: _____________________________
Title: _______________________________
WEST PHARMACEUTICAL SERVICES OF FLORIDA, INC.
By: ________________________________
Name: _____________________________
Title: _______________________________
WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC.
By: ________________________________
Name: _____________________________
Title: _______________________________
WEST PHARMACEUTICAL SERVICES GROUP LIMITED
By: ________________________________
Name: _____________________________
Title: _______________________________
<PAGE>
PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Agent
By:__________________________________
Name:_______________________________
Title:________________________________
FIRST UNION NATIONAL BANK, as a Bank
By:__________________________________
Name:_______________________________
Title:________________________________
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By:__________________________________
Name:_______________________________
Title:________________________________
By:__________________________________
Name:_______________________________
Title:________________________________
NATIONAL CITY BANK, as a Bank
By:__________________________________
Name:_______________________________
Title:________________________________
<PAGE>
THE CHASE MANHATTAN BANK, as a Bank
By:__________________________________
Name:_______________________________
Title:________________________________
MELLON BANK, N.A., as a Bank
By:__________________________________
Name:_______________________________
Title:________________________________
<PAGE>
SCHEDULE I
BANKS AND COMMITMENT INFORMATION
<TABLE>
<CAPTION>
Bank and Lending Office(s) Commitments
364 Day Five Year Swing Line
<S> <C> <C> <C>
PNC Bank, National Association $14,444,444.45 $15,555,555.55 $15,000,000
1000 Westlakes Dr., Suite 200
Berwyn, PA 19312
Attention: Amy Petersen
Facsimile: 610-725-5799
First Union National Bank $10,833,333.33 $11,666,666.67 $0
1339 Chestnut Street
PA 1242
Philadelphia, PA 19107
Attention: Wynelle Farlow
Facsimile: 215-786-5356
Dresdner Bank AG, New York $10,833,333.33 $11,666,666.67 $0
and Grand Cayman Branches
75 Wall Street
New York, NY 10005
Attention: Richard Morris
Facsimile: 212-429-2524
National City Bank $9,629,629.63 $10,370,370.37 $0
One South Board Street, 13th Floor
Philadelphia, PA 19107
Attention: Thomas McDowell
Facsimile: 267-256-40001
The Chase Manhattan Bank $9,629,629.63 $10,370,370.37 $0
One Riverfront Plaza, Second Floor
Newark, NJ 07102
Attention: Thomas Conroy
Facsimile: 973-353-6158
Mellon Bank, N.A. $9,629,629.63 $10,370,370.37 $0
610 W. Germantown Pike, Suite 200
Plymouth Meeting, PA 19462
Attention: Frank McGrane
Facsimile: 610-941-4136
------------------------------------------
Total Commitments $65,000,000 $70,000,000 $15,000,000
</TABLE>
<PAGE>
SCHEDULE II
EXISTING LIENS
<PAGE>
SCHEDULE 3.17
SUBSIDIARIES
Shares of Capital Stock
Name Authorized Issued and Outstanding
<PAGE>
EXHIBIT A-1
FORM OF 364 DAY NOTE
<PAGE>
EXHIBIT A-2
FORM OF FIVE YEAR NOTE
<PAGE>
EXHIBIT A-3
FORM OF SWING LINE NOTE
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE>
EXHIBIT C
FORM OF NOTICE OF BORROWING
<PAGE>
EXHIBIT D
FORM OF JOINDER AND ASSUMPTION AGREEMENT
<PAGE>
EXHIBIT E
FORM OF OPINION OF COUNSEL
<PAGE>
CREDIT AGREEMENT
among
WEST PHARMACEUTICAL SERVICES, INC.
and
Certain of Its Subsidiaries,
as Borrowers,
The Several Lenders From Time to Time
Parties Hereto
and
PNC BANK, NATIONAL ASSOCIATION,
as Agent
and
PNC CAPITAL MARKETS, INC., as Lead Arranger
Dated as of July 26, 2000
$135,000,000 CREDIT FACILITY
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms.........................................................1
1.2 Other Definitional Provisions........................................20
SECTION 2. LOANS AND TERMS OF COMMITMENTS....................................21
2.1 The Loans............................................................21
2.2 Nature of Banks' Obligations with Respect to Loans...................24
2.3 Notes................................................................24
2.4 Procedure for 364 Day Loans and Five Year Loans......................25
2.5 Conversion and Continuation Options..................................27
2.6 Utilization of Commitments in Optional Currencies....................27
2.7 Fees.................................................................29
2.8 Letter of Credit Subfacility.........................................29
2.9 Interest Rates and Payment Dates.....................................34
2.10 Default Interest..................................................35
2.11 Pro Rata Treatment of Loans and Payments; Facility Fees...........35
2.12 Payments..........................................................36
2.13 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits
Not Available....................................................37
2.14 Termination, Reduction and Extension of Commitments...............38
2.15 Prepayment of Loans...............................................40
2.16 Requirements of Law...............................................41
2.17 Taxes.............................................................42
2.18 Indemnity.........................................................44
2.19 Judgment Currency.................................................45
2.20 Borrowers' Representative.........................................45
2.21 European Monetary Union...........................................45
2.22 Foreign Borrower Obligations......................................46
2.23 Change of Lending Office..........................................47
2.24 Substitution of Banks.............................................47
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................47
3.1 Financial Condition..................................................47
3.2 No Change............................................................48
3.3 Corporate Existence; Compliance with Law.............................48
3.4 Corporate Power; Authorization; Enforceable Obligations..............48
3.5 No Legal Bar.........................................................49
3.6 No Material Litigation...............................................49
3.7 No Default...........................................................49
3.8 Taxes................................................................49
3.9 Federal Regulations..................................................49
3.10 ERISA.............................................................49
3.11 Investment Company Act............................................50
3.12 Public Utility Holding Company Act................................50
3.13 Environmental Matters.............................................50
3.14 No Material Misstatements.........................................51
3.15 Title to Properties...............................................51
3.16 Intellectual Property.............................................52
3.17 List of Subsidiaries..............................................52
3.18 Solvency..........................................................52
3.19 Insurance.........................................................52
3.20 Year 2000.........................................................52
SECTION 4. CONDITIONS PRECEDENT..............................................53
4.1 Conditions to Initial Extension of Credit............................53
4.2 Conditions to Each Extension of Credit...............................54
SECTION 5. AFFIRMATIVE COVENANTS.............................................54
5.1 Financial Statements.................................................55
5.2 Certificates; Other Information......................................55
5.3 Payment of Obligations...............................................56
5.4 Maintenance of Existence.............................................56
5.5 Maintenance of Insurance; Property...................................56
5.6 Inspection of Property; Books and Records; Discussions...............56
5.7 Notices..............................................................57
5.8 Environmental Laws...................................................57
5.9 Notice and Joinder of New Subsidiaries...............................58
5.10 Use of Proceeds...................................................58
5.11 Subsequent Credit Terms...........................................58
SECTION 6. NEGATIVE COVENANTS................................................59
6.1 Financial Condition Covenants........................................59
6.2 Limitation on Liens..................................................59
6.3 Limitations on Fundamental Changes...................................59
6.4 Limitation on Sale of Assets.........................................59
6.5 Limitation on Distributions..........................................60
6.6 Transactions with Affiliates.........................................60
6.7 Priority Debt........................................................60
6.8 Limitation on Acquisitions...........................................61
6.9 Fiscal Year..........................................................61
6.10 Limitation on Conduct of Business.................................61
SECTION 7. EVENTS OF DEFAULT.................................................61
7.1 Events of Default....................................................61
SECTION 8. THE AGENT.........................................................64
8.1 Appointment..........................................................64
8.2 Delegation of Duties.................................................64
8.3 Exculpatory Provisions...............................................64
8.4 Reliance by Agent....................................................64
8.5 Notice of Default....................................................65
8.6 Non-Reliance on Agent and Other Banks................................65
8.7 Indemnification......................................................65
8.8 Agent in Its Individual Capacity.....................................66
8.9 Successor Agent......................................................66
8.10 Beneficiaries.....................................................66
SECTION 9. MISCELLANEOUS.....................................................66
9.1 Amendments and Waivers...............................................66
9.2 Notices; Lending Offices.............................................67
9.3 No Waiver; Cumulative Remedies.......................................68
9.4 Survival of Representations and Warranties...........................68
9.5 Payment of Expenses and Taxes........................................68
9.6 Successors and Assigns...............................................69
9.7 Disclosure of Information............................................72
9.8 Adjustments; Set-off.................................................72
9.9 Counterparts.........................................................73
9.10 Severability......................................................73
9.11 Integration.......................................................73
9.12 GOVERNING LAW.....................................................74
9.13 Submission To Jurisdiction; Waivers...............................74
9.14 Acknowledgments...................................................74
9.15 No Right of Contribution..........................................74
9.16 WAIVERS OF JURY TRIAL.............................................75
<PAGE>
SCHEDULES
SCHEDULE I Bank and Commitment Information
SCHEDULE II Existing Liens
SCHEDULE 3.17 Subsidiaries
EXHIBITS
EXHIBIT A-1 Form of 364 Day Note
EXHIBIT A-2 Form of Five Year Note
EXHIBIT A-3 Form of Swing Line Note
EXHIBIT B Form of Assignment and Acceptance Agreement
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Joinder and Assumption Agreement
EXHIBIT E Form of Opinion of Counsel
