UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 1996
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 1-1553
THE BLACK & DECKER CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 52-0248090
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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701 East Joppa Road Towson, Maryland 21286
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(Address of principal executive offices) (Zip Code)
(410) 716-3900
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name, former address, and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. X YES NO
The number of shares of Common Stock outstanding as of March 31, 1996:
87,400,506
The exhibit index as required by item 601(a) of Regulation S-K is included in
this report.
<PAGE>
THE BLACK & DECKER CORPORATION AND SUBSIDIARIES
INDEX - FORM 10-Q
March 31, 1996
Page
PART I - FINANCIAL INFORMATION
Consolidated Statement of Earnings (Unaudited)
For the Three Months Ended March 31, 1996 and April 2, 1995 ............. 3
Consolidated Balance Sheet
March 31, 1996 (Unaudited) and December 31, 1995 ....................... 4
Consolidated Statement of Cash Flows (Unaudited)
For the Three Months Ended March 31, 1996 and April 2, 1995 ............ 5
Notes to Consolidated Financial Statements (Unaudited) .................... 6
Management's Discussion and Analysis of Financial Condition and
Results of Operations .................................................. 10
PART II - OTHER INFORMATION ............................................... 17
SIGNATURES ................................................................ 20
<PAGE>
CONSOLIDATED STATEMENT OF EARNINGS (Unaudited)
The Black & Decker Corporation and Subsidiaries
(Dollars in Millions Except Per Share Amounts)
<TABLE>
<CAPTION>
Three Months Ended
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March 31, 1996 April 2, 1995
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<S> <C> <C>
Revenues $ 1,065.0 $ 1,021.4
Cost of goods sold 670.1 642.5
Marketing and administrative expenses 306.2 298.2
Restructuring costs 81.6 -
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Operating Income 7.1 80.7
Interest expense (net of interest income) 37.9 46.8
Other expense 3.4 2.8
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Earnings (Loss) From Continuing Operations Before
Income Taxes (34.2) 31.1
Income taxes (benefit) (1.8) 12.0
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Earnings (Loss) From Continuing Operations (32.4) 19.1
Earnings from discontinued operations (net of income taxes
of $55.6 for 1996 and $6.3 for 1995) 70.4 6.6
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Net Earnings $ 38.0 $ 25.7
===================================================================================================================
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Net Earnings Applicable to Common Shares $ 35.1 $ 22.8
===================================================================================================================
Net Earnings Per Common and Common Equivalent Share:
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Primary:
Earnings (loss) from continuing operations $ (.40) $ .19
Earnings from discontinued operations .79 .08
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Primary Earnings Per Share $ .39 $ .27
===================================================================================================================
Shares Used in Computing Primary Earnings Per Share
(in Millions) 89.1 85.0
===================================================================================================================
Assuming Full Dilution:
Earnings (loss) from continuing operations $ (.40) $ .19
Earnings from discontinued operations .79 .08
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Fully Diluted Earnings Per Share $ .39 $ .27
===================================================================================================================
Shares Used in Computing Fully Diluted Earnings Per
Share (in Millions) 89.5 85.0
===================================================================================================================
Dividends Per Common Share $ .12 $ .10
===================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements (Unaudited)
<PAGE>
CONSOLIDATED BALANCE SHEET
The Black & Decker Corporation and Subsidiaries
(Millions of Dollars Except Per Share Amount)
<TABLE>
<CAPTION>
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March 31, 1996
(Unaudited) December 31, 1995
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<S> <C> <C>
Assets
Cash and cash equivalents $ 112.5 $ 131.6
Trade receivables 616.4 651.3
Inventories 920.4 855.7
Net assets of discontinued operations - 302.4
Other current assets 154.8 165.6
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Total Current Assets 1,804.1 2,106.6
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Property, Plant and Equipment 862.4 866.8
Goodwill 2,110.2 2,142.0
Other Assets 427.2 429.9
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$ 5,203.9 $ 5,545.3
===================================================================================================================
Liabilities and Stockholders' Equity
Short-term borrowings $ 235.8 $ 599.2
Current maturities of long-term debt 47.9 48.0
Trade accounts payable 387.8 396.7
Other accrued liabilities 747.8 743.0
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Total Current Liabilities 1,419.3 1,786.9
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Long-Term Debt 1,719.5 1,704.5
Deferred Income Taxes 53.7 52.8
Postretirement Benefits 310.2 307.8
Other Long-Term Liabilities 249.8 270.1
Stockholders' Equity
Convertible preferred stock, no par value
(outstanding: March 31, 1996 and
December 31, 1995--150,000 shares) 150.0 150.0
Common stock, par value $.50 per share
(outstanding: March 31, 1996--87,400,506 shares;
December 31, 1995--86,447,588 shares) 43.7 43.2
Capital in excess of par value 1,103.2 1,084.5
Retained earnings 227.2 202.6
Equity adjustment from translation (72.7) (57.1)
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Total Stockholders' Equity 1,451.4 1,423.2
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$ 5,203.9 $ 5,545.3
===================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements (Unaudited)
<PAGE>
CONSOLIDATED STATEMENT OF CASH FLOWS (Unaudited)
The Black & Decker Corporation and Subsidiaries
(Millions of Dollars)
<TABLE>
<CAPTION>
Three Months Ended
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March 31, 1996 April 2, 1995
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<S> <C> <C>
Operating Activities
Net earnings $ 38.0 $ 25.7
Adjustments to reconcile net earnings to cash flow from
operating activities of continuing operations:
Non-cash charges and credits:
Restructuring charges 81.6 -
Depreciation and amortization 52.9 51.1
Other 2.1 4.5
Earnings of discontinued operations (70.4) (6.6)
Changes in selected working capital items:
Trade accounts receivable 87.5 97.3
Inventories (69.2) (111.6)
Trade accounts payable (8.8) 73.6
Other assets and liabilities (115.6) (79.0)
Net decrease in receivables sold (56.0) (71.0)
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Cash flow from operating activities of continuing operations (57.9) (16.0)
Cash flow from operating activities of discontinued operations (10.1) (1.7)
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Cash Flow From Operating Activities (68.0) (17.7)
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Investing Activities
Proceeds from partial sale of discontinued operations 415.0 60.0
Investing activities of discontinued operations - (1.8)
Proceeds from disposal of assets 18.0 2.8
Capital expenditures (40.5) (36.3)
Cash inflow from hedging activities 155.6 198.3
Cash outflow from hedging activities (156.5) (194.0)
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Cash Flow From Investing Activities 391.6 29.0
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Cash Flow Before Financing Activities 323.6 11.3
Financing Activities
Net decrease in short-term borrowings (362.0) (51.4)
Proceeds from long-term debt (including revolving credit facility) 24.7 179.3
Payments on long-term debt (including revolving credit facility) (5.6) (101.8)
Issuance of common stock 13.8 5.3
Cash dividends (13.4) (11.4)
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Cash Flow From Financing Activities (342.5) 20.0
Effect of exchange rate changes on cash (.2) 3.4
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(Decrease) Increase In Cash And Cash Equivalents (19.1) 34.7
Cash and cash equivalents at beginning of period 131.6 65.0
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Cash And Cash Equivalents At End Of Period $ 112.5 $ 99.7
===================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements (Unaudited)
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The Black & Decker Corporation and Subsidiaries
NOTE 1: BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions to Form 10-Q and do not include all the
information and notes required by generally accepted accounting principles for
complete financial statements. In the opinion of management, the unaudited
consolidated financial statements include all adjustments consisting only of
normal recurring accruals considered necessary for a fair presentation of the
financial position and the results of operations. The accompanying Consolidated
Statement of Earnings and Consolidated Statement of Cash Flows for the three
months ended April 2, 1995, have been reclassified to identify separately the
results of operations and cash flows of the Corporation's discontinued
information technology and services segment (see Note 2). Certain prior year
amounts in the consolidated financial statements have been reclassified to
conform to the presentation used for 1996.
Operating results for the three-month period ended March 31, 1996, are not
necessarily indicative of the results that may be expected for a full fiscal
year. For further information, refer to the consolidated financial statements
and notes included in the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995.
NOTE 2: DISCONTINUED OPERATIONS
The accompanying Consolidated Statement of Earnings reflect the net income
attributable to the Corporation's discontinued information technology and
services (PRC) segment as earnings from discontinued operations. Revenues of the
discontinued PRC segment are excluded from revenues as reported in the
accompanying Consolidated Statement of Earnings. The results of the discontinued
operations of PRC do not reflect any expense for interest allocated by or
management fees charged by the Corporation.
On February 16, 1996, the Corporation announced that it had completed the
previously announced sale of PRC Inc. for $425.0 million to Litton Industries,
Inc. Earnings from discontinued operations of $70.4 million for the three months
ended March 31, 1996, consist primarily of the gain on the sale of PRC Inc., net
of applicable income taxes of $55.6 million. Revenues and operating income of
PRC Inc. for the period from January 1, 1996, through February 15, 1996, were
not significant. The terms of the sale of PRC Inc. provide for an adjustment to
the sales price, expected to be finalized later in 1996, based upon the changes
in the net assets of PRC Inc. through February 15, 1996.
The Corporation sold PRC Realty Systems, Inc. ("RSI") on March 31, 1995,
for proceeds of $60.0 million and sold PRC Environmental Management, Inc. ("EMI"
) on September 15, 1995. Together, PRC Inc., RSI and EMI comprised the
discontinued PRC segment. Earnings from the discontinued PRC segment amounted to
$6.6 million for the three months ended April 2, 1995, net of applicable income
taxes of $6.3 million. The pre-tax gain on the sale of RSI was offset by tax
expense associated with the sale. Revenues of the discontinued PRC segment for
the three months ended April 2, 1995, were $178.4 million.
<PAGE>
NOTE 3: RESTRUCTURING
During the three months ended March 31, 1996, the Corporation commenced a
restructuring of certain of its operations and recorded a restructuring charge
of $81.6 million.
The major component of the restructuring charge relates to the severance of
approximately 1,100 of the Corporation's employees. An accrual of $62.8 million
for severance, principally associated with the Corporation's European Consumer
businesses, is included in the restructuring charge.
In connection with the restructuring, the Corporation will also take actions
to rationalize certain manufacturing and service operations. Such
rationalization, principally associated with the Corporation's Consumer
businesses in the United States, will include the outsourcing of certain
products currently manufactured by the Corporation and the closure of several
small manufacturing facilities as well as a number of service centers. As a
result, the restructuring charge also includes an $8.9 million write-down to
net realizable value of certain land and buildings. The remaining restructuring
charge primarily relates to the write-down to net realizable value of certain
equipment made obsolete or redundant due to the Corporation's decision to close
certain facilities or outsource certain production.
NOTE 4: SALE OF RECEIVABLES
At March 31, 1996, under its sale of receivables program, the Corporation had
sold $174.0 million of receivables compared to $230.0 million at December 31,
1995. The discount on sale of receivables is included in "Other expense."
NOTE 5: INVENTORIES
The components of inventory at the end of each period, in millions of dollars,
consisted of the following:
<TABLE>
<CAPTION>
March 31, 1996 December 31, 1995
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<S> <C> <C>
FIFO Cost
Raw materials and work-in-process $ 246.2 $ 231.6
Finished products 716.3 665.0
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962.5 896.6
Excess of FIFO cost over LIFO inventory value (42.1) (40.9)
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$ 920.4 $ 855.7
===================================================================================================================
</TABLE>
Inventories are stated at the lower of cost or market. The cost of United States
inventories is based primarily on the last-in, first-out (LIFO) method; all
other inventories are based on the first-in, first-out (FIFO) method.
NOTE 6: GOODWILL
Goodwill at the end of each period, in millions of dollars, was as follows:
<TABLE>
<CAPTION>
March 31, 1996 December 31, 1995
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Goodwill $ 2,620.0 $ 2,635.0
Less accumulated amortization 509.8 493.0
- -------------------------------------------------------------------------------------------------------------------
$ 2,110.2 $ 2,142.0
===================================================================================================================
</TABLE>
<PAGE>
NOTE 7: LONG-TERM DEBT
Indebtedness of subsidiaries of the Corporation in the aggregate principal
amounts of $663.0 million and $759.1 million were included in the Consolidated
Balance Sheet at March 31, 1996, and December 31, 1995, respectively, under the
captions short-term borrowings, current maturities of long-term debt, and
long-term debt.
NOTE 8: INTEREST EXPENSE (NET OF INTEREST INCOME)
Interest expense (net of interest income) for each period, in millions of
dollars, consisted of the following:
<TABLE>
<CAPTION>
Three Months Ended
March 31, 1996 April 2, 1995
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<S> <C> <C>
Interest expense $ 39.9 $ 48.9
Interest (income) (2.0) (2.1)
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$37.9 $46.8
===================================================================================================================
</TABLE>
NOTE 9: NET EARNINGS PER COMMON SHARE
Primary earnings per common and common equivalent share are computed by dividing
net earnings, after deducting preferred stock dividends, by the weighted average
number of common shares outstanding during each period plus, for the three
months ended March 31, 1996, the incremental shares that would have been
outstanding under certain employee benefit plans and upon the assumed exercise
of dilutive stock options. For the three months ended April 2, 1995, these
incremental shares were immaterial and, accordingly, were not considered in the
calculation of primary earnings per share.
For the three months ended March 31, 1996, fully diluted earnings per share
are computed by dividing net earnings, after deducting preferred stock
dividends, by the weighted average number of common shares outstanding during
the period plus the incremental shares that would have been outstanding under
certain employee benefit plans and upon the assumed exercise of dilutive stock
options. For the three months ended April 2, 1995, the incremental shares that
would have been outstanding under certain employee benefit plans and upon the
assumed exercise of dilutive stock options were immaterial and, accordingly,
were not considered in the calculation of fully diluted earnings per share. As a
result, fully diluted earnings per share for the three months ended April 2,
1995, was not materially different from primary earnings per share. For the
three months ended March 31, 1996, and April 2, 1995, conversion of the
preferred shares would have been anti-dilutive and, therefore, was not
considered in the computation of fully diluted earnings per share.
NOTE 10: SUBSEQUENT EVENT
In April 1996, the Corporation replaced its former unsecured revolving
credit facility scheduled to expire in 1997 with a new unsecured revolving
credit facility (the Credit Facility), which will expire in 2001. Under the
Credit Facility, which consists of two individual facilities, the Corporation
may borrow up to $1.0 billion.
Borrowing options under the Credit Facility are at the London Interbank
Offered Rate ("LIBOR") plus a specified percentage, or at other variable rates
set forth therein. The Credit Facility provides that the interest rate margin
over LIBOR, initially set at .15% and .25% for the two individual facilities,
will increase or decrease based upon changes in the ratings of the Corporation's
long-term senior unsecured debt. The Corporation also is able to borrow by means
of competitive bid rate loans under the Credit Facility. Competitive bid rate
loans will be made through an auction process at then-current market rates. In
addition to interest payable on the principal amount of indebtedness outstanding
from time to time under the Credit Facility, the Corporation is also required to
pay an annual facility fee to each bank, initially equal to .125% of the amount
of each bank's commitment, whether used or unused. The Credit Facility provides
that the facility fee also will increase or decrease based upon changes in the
ratings of the Corporation's long-term senior unsecured debt.
The Credit Facility includes various customary covenants, including
covenants limiting the ability of the Corporation and its subsidiaries to pledge
assets or incur liens on assets, and financial covenants requiring the
Corporation to maintain a specified leverage ratio and to achieve a certain
level of cash flow to fixed expense coverage. As of March 31, 1996, the
Corporation was in compliance with all terms and conditions of the Credit
Facility as well as of the predecessor unsecured revolving credit facility. The
Corporation expects to continue to meet the covenants imposed by the Credit
Facility. Meeting the cash flow coverage ratio is dependent upon the level of
future earnings and interest rates, each of which can have a significant impact
on the ratio.
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Corporation reported net earnings of $38.0 million or $.39 per share on a
fully diluted basis for the three-month period ended March 31, 1996, compared to
net earnings of $25.7 million or $.27 per share on a fully diluted basis for the
three-month period ended April 2, 1995. Excluding the effects of the
restructuring charge of $81.6 million ($67.0 million after tax) recognized in
the first quarter of 1996, earnings from continuing operations increased from
$19.1 million ($.19 per share on a fully diluted basis) in the first quarter of
1995 to $34.6 million ($.35 per share on a fully diluted basis) in the first
quarter of 1996. This improvement was attributable to higher sales volume, the
continuing effects of cost reduction initiatives, lower interest expense due
primarily to reduced debt levels, and a lower effective income tax rate.
DISCONTINUED OPERATIONS
Discontinued operations consist of the results of PRC Inc., PRC Realty Systems
Inc. ("RSI") and PRC Environmental Management Inc. ("EMI"). Together, PRC Inc.,
RSI and EMI comprised the Corporation's former information technology and
services (PRC) segment.
On February 16, 1996, the Corporation announced that it had completed the
previously announced sale of PRC Inc., the remaining business in the
discontinued PRC segment, to Litton Industries, Inc. Proceeds of $425.0 million
from the sale of PRC Inc., less cash selling expenses of $10.0 million paid
during the three months ended March 31, 1996, were used to reduce short-term
borrowings. Earnings from discontinued operations of $70.4 million or $.79 per
share on a fully diluted basis for the three-month period ended March 31, 1996,
consist primarily of the gain on the sale of PRC Inc., net of applicable income
taxes. The gain is net of provisions for adjustment to the sales price and
retained liabilities. Revenues and operating income of PRC Inc. for the period
from January 1, 1996, through the date of sale were not significant.
On March 31, 1995, the Corporation sold RSI for proceeds of $60.0 million.
Earnings from discontinued operations amounted to $6.6 million or $.08 per share
on a fully diluted basis for the three months ended April 2, 1995. The pre-tax
gain on the sale of RSI was offset by tax expense associated with the sale.
The results of the discontinued operations of the PRC segment do not reflect
any expense for interest expense allocated by or management fees charged by the
Corporation.
<PAGE>
CONTINUING OPERATIONS
RESTRUCTURING
The Corporation actively seeks to identify opportunities to improve its cost
structure. These opportunities may involve the closure of manufacturing
facilities or the reorganization of other operations.
The Corporation has undertaken restructuring actions in the past which
improved its cost structure; those improvements, however, are subject to erosion
over time as competitive pressures intensify or commodity prices increase. In
order to preserve those improvements, the Corporation continuously seeks
opportunities to improve its cost structure. Based upon a number of factors,
including the weak retail environment in Europe which began to soften in the
latter part of 1995 and the insights of the new management team in the
Corporation's Consumer operations, the Corporation decided to intensify its cost
reduction efforts during the quarter ended March 31, 1996. Accordingly, as more
fully described in Note 3 of Notes to Consolidated Financial Statements, the
Corporation commenced a restructuring of certain of its operations during the
first quarter of 1996 and recorded a restructuring charge in the amount of $81.6
million ($67.0 million after tax).
The major component of the restructuring charge relates to the severance of
approximately 1,100 of the Corporation's employees, approximately 1,000 of whom
are employees of its Consumer segment. Severance benefits totaling $62.8
million, principally associated with the Corporation's European Consumer
businesses, were accrued in the restructuring charge and are expected to be
substantially paid in cash during the remainder of 1996.
The balance of the restructuring charge primarily represents non-cash
charges associated with the Corporation's decision to rationalize certain
manufacturing and service operations, principally in the Corporation's domestic
Consumer businesses. Such rationalization will include the outsourcing of
certain products currently manufactured by the Corporation and the closure of
several small manufacturing facilities as well as a number of service centers.
The principal non-cash charge consists of an $8.9 million write-down to net
realizable value of certain land and buildings affected by the rationalization.
The remaining restructuring charge primarily relates to the write-down to net
realizable value of certain equipment made obsolete or redundant due to the
Corporation's decision to close facilities or outsource certain production.
While the Corporation has commenced this restructuring to improve its cost
structure, it does not believe that the full benefit to the Corporation's
reported results will be apparent during 1996 due to the timing of the planned
actions as well as the fact that the incremental benefit of the severance and
other actions described above will be partially offset by additional expenses
associated with those actions which are not accruable as restructuring charges
but rather will be expensed as incurred. The Corporation estimates that the
restructuring actions undertaken will result in incremental pre-tax savings of
approximately $10 million in 1996 and approximately $40 million annually
thereafter.
The Corporation is committed to continuous productivity improvement. As part
of this commitment, the Corporation has embarked on the specific actions
included in the aforementioned restructuring plan. Many of these actions involve
the relocation or consolidation of production processes. Realization of the
savings identified above is dependent upon the effectiveness and timing of these
actions.
<PAGE>
REVENUES
The following chart sets forth an analysis of the consolidated changes in
revenues for the three-month periods ended March 31, 1996 and April 2, 1995.
ANALYSIS OF CHANGES IN REVENUES OF CONTINUING OPERATIONS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
For the Three Months Ended
(Dollars in Millions) March 31, 1996 April 2, 1995
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Total revenues $ 1,065.0 $ 1,021.4
Unit volume-existing (1) 4% 9%
-disposed (2) -% -%
Price -% 1%
Currency -% 4%
- -------------------------------------------------------------------------------------------------------------------
Change in total revenues 4% 14%
===================================================================================================================
</TABLE>
In the following chart and throughout the remainder of this discussion, the
following definitions apply:
(1) Existing - Reflects the change in volume for businesses where
period-to-period comparability exists.
(2) Disposed - Reflects the change in total revenues from continuing operations
for businesses that were included in prior year results, but
subsequently have been sold.
The Corporation operates in two business segments: Consumer and Home
Improvement Products (Consumer), including consumer and professional power tools
and accessories, household products, security hardware, outdoor products
(composed of electric lawn and garden tools and recreational products), plumbing
products, and product service; and Commercial and Industrial Products
(Commercial), including fastening systems and glass container-making equipment.
The following chart sets forth an analysis of the change in revenues of
continuing operations for the three months ended March 31, 1996, compared to the
three months ended April 2, 1995, by geographic area for each business segment.
<PAGE>
ANALYSIS OF CHANGES IN REVENUES OF CONTINUING OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 1996
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
United
(Dollars in Millions) States Europe Other Total
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Consumer
Total Revenues $ 493.0 $ 288.4 $ 110.3 $ 891.7
Existing unit volume 12% (3)% (11)% 4%
Price (1)% -% 5% -%
Currency -% 2% (3)% -%
- -------------------------------------------------------------------------------------------------------------------
11% (1)% (9)% 4%
- -------------------------------------------------------------------------------------------------------------------
Commercial
Total Revenues $ 65.8 $ 70.7 $ 36.8 $ 173.3
Existing unit volume (4)% 5% 22% 5%
Price 1% 2% -% 1%
Currency -% 2% (7)% (1)%
- -------------------------------------------------------------------------------------------------------------------
(3)% 9% 15% 5%
- -------------------------------------------------------------------------------------------------------------------
Consolidated
Total Revenues $ 558.8 $ 359.1 $ 147.1 $ 1,065.0
Existing unit volume 10% (1)% (4)% 4%
Price (1)% -% 4% -%
Currency -% 2% (4)% -%
- -------------------------------------------------------------------------------------------------------------------
Change in Total Revenues 9% 1% (4)% 4%
===================================================================================================================
</TABLE>
Existing unit volume grew by 4% for the three-month period ended March 31,
1996, over the prior year level. Neither pricing actions nor the effects of
changes in foreign exchange rates had a significant effect on Corporation's
consolidated revenues during the first quarter of 1996 compared to the
corresponding quarter of 1995.
Existing unit volume in the Consumer segment for the three months ended
March 31, 1996, grew by 4% compared to last year. Revenues in the Corporation's
Consumer businesses in the United States grew by 11% for the three-month period
ended March 31, 1996, over the 1995 level. With the exception of the domestic
accessories business, existing unit volume in the first quarter of 1996 exceeded
the prior year level for all domestic Consumer businesses, with double-digit
rates of growth experienced in the domestic power tools, security hardware, and
household products businesses. Revenue growth in the domestic power tools
business during the quarter ended March 31, 1996, was experienced across all
product categories, with strong growth in the DEWALT(R) professional power tools
line and in outdoor lawn and garden products. The continued success of the
SnakeLightTM flexible flashlight drove the household products business'
double-digit rate of growth in existing unit volume over first quarter of 1995,
despite unit volume decreases experienced in certain other product lines as a
result of a soft retail environment. The 1% decrease in price experienced by the
domestic Consumer businesses during the first quarter of 1996 compared to the
corresponding period in 1995 resulted principally from pricing actions taken to
spur the sales of older or excess inventories and respond to competitors.
Excluding the positive effect of changes in foreign exchange rates, revenues
in the Corporation's Consumer businesses in Europe declined by 3% for the three
months ended March 31, 1996, from the corresponding period in 1995. The retail
environment in Europe continued to be difficult in the first quarter of 1996
with unit volume declines from prior year levels experienced in most major
European countries. Despite decreased sales of outdoor lawn and garden tools,
accessories, and security hardware in Europe during the first quarter of 1996 as
compared to the prior year, increased sales of consumer and professional power
tools and household products were experienced during the quarter over the
comparable period in 1995.
Excluding the negative effect of changes in foreign exchange rates, revenues
in the Corporation's Consumer businesses in Other geographic areas for the first
quarter of 1996 declined by 6% from the first quarter of 1995. This decline was
experienced in a number of geographic areas, particularly, in Canada.
Excluding the negative effect of changes in foreign exchange rates, revenues
in the Corporation's Commercial businesses during the three months ended March
31, 1996, increased by 6% over the corresponding period in 1995. This
improvement was driven by strong revenues in the Corporation's glass-container
making equipment business while revenues in the fastening systems business
approximated the prior year's level.
EARNINGS
Operating income for the three months ended March 31, 1996, was $7.1 million
compared to $80.7 million for the corresponding period in 1995. Excluding the
effects of the $81.6 million restructuring charge recognized in the first
quarter of 1996, operating income for the first quarter of 1996 increased 10% to
$88.7 million compared to $80.7 million for first quarter of 1995. Excluding the
1996 restructuring charge, operating income as a percentage of revenues would
have been 8.3% for the three-month period ended March 31, 1996, compared to 7.9%
for the corresponding period in 1995. This operating income improvement was
experienced in the Corporation's domestic power tools, security hardware,
plumbing products, and household products businesses as well as in the
Corporation's Consumer businesses in Latin America and in its Commercial
businesses.
Gross margin as a percentage of revenues was 37.1% for the three-month
periods ended March 31, 1996, and April 2, 1995.
Marketing and administrative expenses as a percentage of total revenues for
the three-month period ended March 31, 1996, were 28.8% compared to 29.2% for
the comparable period in 1995 as the benefits of the Corporation's cost
reduction initiatives and the realization of the leverage effects of higher
sales volumes on fixed and semi-fixed costs continued to be recognized.
Net interest expense (interest expense less interest income) for the
three-month period ended March 31, 1996, was $37.9 million as compared to $46.8
million for the three-month period ended April 2, 1995. The lower level of net
interest expense was primarily the result of reduced debt levels in the first
quarter of 1996 as compared to the first quarter of 1995 as the Corporation used
the proceeds from the sales of its discontinued operations to repay debt.
<PAGE>
The Corporation maintains a portfolio of interest rate hedge instruments for
the purpose of managing interest rate exposure. During the quarter ended March
31, 1996, the Corporation decreased its portfolio through the termination of a
variable to fixed rate interest rate swap of $50.0 million notional amount.
Deferred gains and losses on the early termination of interest rate swaps as of
March 31, 1996, were not significant. The repayment of short-term borrowings
during the first quarter of 1996 with the proceeds from the sale of PRC Inc.,
coupled with the reduction of the Corporation's interest rate hedge portfolio
during that quarter, had the effect of decreasing the Corporation's variable
rate debt to total debt ratio from 43% at December 31, 1995, to 35% at March 31,
1996.
Other expense for the three-month periods ended March 31, 1996, and April 2,
1995, primarily includes the discount on the sale of receivables.
An income tax benefit of $1.8 million was recognized on the Corporation's
pre-tax loss from continuing operations of $34.2 million for the three months
ended March 31, 1996, compared to income tax expense of $12.0 million on pre-tax
earnings from continuing operations of $31.1 million for the three months ended
April 2, 1995. Excluding the income tax benefit of $14.6 million recognized on
the restructuring charge of $81.6 million recognized in the quarter ended March
31, 1996, the Corporation's reported tax rate on its continuing operations for
the first quarter of 1996 would have been 27% compared to a tax rate of 39% in
the first quarter of 1995.
This lower rate for 1996 as compared to 1995 is due to two factors. First,
the reported tax rate on continuing operations of 39% for the first quarter of
1995 was abnormally high due to the effects of the allocation of taxes
associated with PRC to discontinued operations. Because the Corporation recorded
income tax expense during the first three quarters of 1995 based upon estimated
taxable earnings that included PRC, the allocation of income tax expense
attributable to PRC to earnings from discontinued operations caused the
Corporation's tax rate on continuing operations to fluctuate during each of the
quarters in the year ended December 31, 1995. Excluding the effects of the tax
benefit that resulted from the reduction of its deferred tax asset valuation
allowance in the fourth quarter of 1995, the Corporation's reported tax rate on
continuing operations was 33% for the year ended December 31, 1995. Second,
higher taxable earnings in the United States and a change in the mix of
operating income outside the United States from those subsidiaries in higher
rate tax jurisdictions to those subsidiaries in lower rate tax jurisdictions or
subsidiaries that profit from the utilization of net operating loss
carryforwards also contributed to a lower tax rate on continuing operations
during the first quarter of 1996 compared to the corresponding period in 1995.
FINANCIAL CONDITION
Operating activities of continuing operations before the sale of receivables
used cash of $1.9 million for the three months ended March 31, 1996, compared to
$55.0 million of cash generated for the three months ended April 2, 1995. This
decrease was primarily the result of the timing of certain accrual and expense
payments. In particular, a slight decrease was experienced in the level of trade
accounts payable at March 31, 1996, from the prior year end compared to the
significant increase that occurred in the corresponding period in 1995 when the
Corporation sought to increase vendor terms to improve operating cash flow.
Investing activities for the three months ended March 31, 1996, generated
cash of $391.6 million compared to $29.0 million in the corresponding period in
1995. The improvement in cash flow from investing activities is attributable to
the receipt of proceeds from the sale of PRC Inc., net of cash selling expenses
paid, in the amount of $415.0 million in the first quarter of 1996 compared to
the receipt of proceeds from the sale of RSI in the amount of $60.0 million in
the first quarter of 1995. Both PRC Inc. and RSI were components of the
Corporation's discontinued PRC segment.
Financing activities used cash of $342.5 million for the three months ended
March 31, 1996, compared to cash generated of $20.0 million in the first three
months of 1995. The additional use of cash associated with financing activities
in the first quarter of 1996 compared to 1995 relates primarily to the
Corporation's reduction of short-term borrowings with the net proceeds received
from the sale of PRC Inc. At March 31, 1996, average debt maturity was 4.5 years
compared to 4.0 years at December 31, 1995. As more fully described in Note 10
of Notes to Consolidated Financial Statements, the Corporation entered into a
new unsecured revolving credit facility in April 1996. On a pro forma basis
assuming that the new credit facility been in place, average debt maturity would
have been 5.3 years at March 31, 1996.
In addition to measuring its cash flow generation and usage based upon the
operating, investing, and financing classifications included in the Consolidated
Statement of Cash Flows, the Corporation also measures its free cash flow. Free
cash flow, a measure commonly employed by bond rating agencies and banks, is
defined by the Corporation as cash available for debt reduction (including
short-term borrowings), prior to the effects of cash received from divested
businesses, equity offerings, and sales of receivables. Free cash flow, a more
inclusive measure of the Corporation's cash flow generation than cash flow from
operating activities included in the Consolidated Statement of Cash Flows,
considers items such as cash used for capital expenditures and dividends, as
well as net cash inflows or outflows from hedging activities. During the three
months ended March 31, 1996, the Corporation experienced negative free cash flow
of $46.2 million compared to negative free cash flow of $21.7 million for the
corresponding period in 1995. This $24.5 million decrease in free cash flow
during the first three months of 1996 from 1995 was primarily the result of
reduced cash flows from operating activities.
As more fully described in Note 10 of Notes to Consolidated Financial
Statements, in April 1996, the Corporation replaced its former unsecured
revolving credit facility, which expired in 1997, with a new unsecured revolving
credit facility (the Credit Facility), expiring in 2001. The Credit Facility
consists of two separate unsecured revolving credit facilities, both of which
include certain covenants that require the Corporation to meet specified minimum
cash flow coverage and maximum leverage (debt to equity) ratios. Had the Credit
Facility been in place on March 31, 1996, the Corporation would have been well
within the limits specified for the cash flow coverage and leverage ratios and
would have been in compliance with all other covenants and provisions of the
Credit Facility. In addition, the Corporation was in compliance with all
covenants and provisions of its former unsecured revolving credit facility as of
March 31, 1996.
The Corporation will continue to have cash requirements to support seasonal
working capital needs and capital expenditures, to pay interest, to service
debt, and to complete previously announced restructuring plans. In order to meet
these cash requirements, the Corporation intends to use internally generated
funds and to borrow under the Credit Facility or under short-term borrowing
facilities. Management believes that cash generated from these sources will be
adequate to meet the Corporation's cash requirements over the next 12 months.
<PAGE>
THE BLACK & DECKER CORPORATION
PART II - OTHER INFORMATION
ITEM 1 LEGAL PROCEEDINGS
The Corporation is involved in various lawsuits in the ordinary course of
business. The lawsuits primarily involve claims for damages arising out of the
use of the Corporation's products and allegations of patent and trademark
infringement. The Corporation is also involved in litigation and administrative
proceedings involving employment matters and commercial disputes. Some of these
lawsuits include claims for punitive as well as compensatory damages. The
Corporation, using current product sales data and historical trends, actuarially
calculates the estimate of its current exposure for product liability claims for
amounts in excess of established deductibles and accrues for the estimated
liability as described above up to the limits of the deductibles. All other
claims and lawsuits are handled on a case-by-case basis.
The Corporation also is involved in lawsuits and administrative proceedings
with respect to claims involving the discharge of hazardous substances into the
environment. Certain of these claims assert damages and liability for remedial
investigations and cleanup costs with respect to sites at which the Corporation
has been identified as a potentially responsible party under federal and state
environmental laws and regulations (off-site). Other matters involve sites that
the Corporation currently owns or has previously sold (on-site). For off-site
claims, the Corporation makes an assessment of the cost involved based on
environmental studies, prior experience at similar sites, and the experience of
other named parties. The Corporation also considers the ability of other parties
to share costs, the percentage of the Corporation's exposure relative to all
other parties, and the effects of inflation on these estimated costs. For
on-site matters associated with properties currently owned, an assessment is
made as to whether an investigation and remediation would be required under
applicable federal and state law. For on-site matters associated with properties
previously sold, the Corporation considers the terms of sale as well as
applicable federal and state laws to determine if the Corporation has any
remaining liability. If the Corporation is determined to have potential
liability for properties currently owned or previously sold, an estimate is made
of the total cost of investigation and remediation and other potential costs
associated with the site.
The Corporation's estimate of the costs associated with legal, product
liability, and environmental exposures is accrued if, in management's judgment,
the likelihood of a loss is probable. These accrued liabilities are not
discounted. Insurance recoveries for environmental and certain general liability
claims are not recognized until realized.
As of March 31, 1996, the Corporation had no known probable but inestimable
exposures for awards and assessments in connection with environmental matters
and other litigation and administrative proceedings that could have a material
effect on the Corporation.
Management is of the opinion that the amounts accrued for awards or
assessments in connection with the environmental matters and other litigation
and administrative proceedings to which the Corporation is a party are adequate
and, accordingly, ultimate resolution of these matters will not have a material
adverse affect on the Corporation.
<PAGE>
ITEM 2 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The 1996 Annual Meeting of Stockholders was held on April 23, 1996, for the
election of directors, to consider and approve The Black & Decker Executive
Annual Incentive Plan, to consider and approve The Black & Decker 1996 Employee
Stock Purchase Plan, to consider and approve an amendment to The Black & Decker
Performance Equity Plan, to consider and approve The Black & Decker 1996 Stock
Option Plan, and to ratify the selection of Ernst & Young LLP as independent
public accountants for the Corporation for fiscal year 1996. A total of
79,772,779 of the 87,010,938 votes entitled to be cast at the meeting were
present in person or by proxy. At the meeting, the stockholders:
(1) Elected the following directors:
Number of Shares
Number of Shares AUTHORITY
Directors VOTED FOR WITHHELD
- --------------------------------------------------------------------------------
Nolan D. Archibald 79,167,574 605,205
Alonzo G. Decker, Jr. 79,063,247 709,532
Barbara L. Bowles 79,160,030 612,749
Malcolm Candlish 79,211,997 560,782
Anthony Luiso 78,871,570 901,209
Lawrence R. Pugh 79,147,836 624,943
Mark H. Willes 79,209,784 562,995
M. Cabell Woodward, Jr. 79,201,366 571,413
(2) Approved The Black & Decker Executive Annual Incentive Plan by an
affirmative vote of 76,772,604; votes against the Plan were 2,078,210;
and abstentions were 921,965.
(3) Approved The Black & Decker 1996 Employee Stock Purchase Plan by an
affirmative vote of 77,609,042; votes against the Plan were 1,532,846;
and abstentions were 630,891.
(4) Approved an amendment to The Black & Decker Performance Equity Plan by
an affirmative vote of 68,225,693; votes against the Plan were
10,564,444; and abstentions were 982,642.
(5) Approved The Black & Decker 1996 Stock Option Plan by an affirmative
vote of 67,331,658; votes against the Plan were 11,597,044; and
abstentions were 844,077.
(6) Ratified the selection of Ernst & Young LLP as independent public
accountants for the Corporation for fiscal year 1996 by an affirmative
vote of 79,104,286; votes against ratification were 287,805; and
abstentions were 380,688.
No other matters were submitted to a vote of the stockholders at the meeting.
<PAGE>
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
Exhibit No. Description
4(a) Credit Agreement dated as of April 23, 1996, among
The Black & Decker Corporation, Black & Decker
Holdings Inc. and Black & Decker, as Initial
Borrowers, and the initial Lenders named therein, as
Initial Lenders, and Citibank International plc, as
Facility Agent, and Citibank International plc and
Midland Bank plc, as Co-Arrangers.
4(b) Credit Agreement dated as of April 23, 1996, among
The Black & Decker Corporation, Black & Decker
Holdings Inc., Black & Decker, Black & Decker
International Holdings, B.V., Black & Decker
G.m.b.H., Black & Decker (France) S.A.S., Black &
Decker (Nederland) B.V. and Emhart Glass S.A.,
as Initial Borrowers, and the initial Lenders named
therein, as Initial Lenders, and Credit Suisse, as
Administrative Agent, and Citibank, N.A., as
Documentation Agent, and NationsBank, N.A., as
Syndication Agent.
10(a) The Black & Decker Performance Equity Plan, as
amended, included as Exhibit C to the Proxy Statement
of the Corporation dated March 1, 1996, for the 1996
Annual Meeting of Stockholders of the Corporation, is
incorporated herein by reference.
10(b) The Black & Decker Executive Annual Incentive Plan,
included as Exhibit A to the Proxy Statement of the
Corporation dated March 1, 1996, for the 1996 Annual
Meeting of Stockholders of the Corporation, is
incorporated herein by reference.
10(c) The Black & Decker 1996 Stock Option Plan, included
as Exhibit D to the Proxy Statement of the
Corporation dated March 1, 1996, for the 1996 Annual
Meeting of Stockholders of the Corporation, is
incorporated herein by reference.
11 Computation of Earnings Per Share.
12 Computation of Ratios.
27 Financial Data Schedule.
The Corporation did not file any reports on Form 8-K during the three-month
period ended March 31, 1996.
All other items were not applicable.
<PAGE>
THE BLACK & DECKER CORPORATION
S I G N A T U R E S
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE BLACK & DECKER CORPORATION
By /s/ THOMAS M. SCHOEWE
Thomas M. Schoewe
Vice President and Chief Financial Officer
Principal Accounting Officer
By /s/ STEPHEN F. REEVES
Stephen F. Reeves
Corporate Controller
Date: May 13, 1996
Exhibit 4a
EXECUTION COPY
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of April 23, 1996
Among
THE BLACK & DECKER CORPORATION,
BLACK & DECKER HOLDINGS INC.
and
BLACK & DECKER,
as Initial Borrowers,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK INTERNATIONAL plc,
as Facility Agent,
and
CITIBANK INTERNATIONAL plc and MIDLAND BANK plc,
as Co-Arrangers
SS_NYL3/160823 9
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 1
SECTION 1.02. Computation of Time Periods................................... 24
ARTICLE II
TERMS OF THE ADVANCES AND THE DISCOUNTED NOTES
SECTION 2.01. The Advances.................................................. 24
SECTION 2.02. Making the Revolving Credit Advances and Purchasing the
Discounted Notes............................................. 25
SECTION 2.03. The Competitive Bid Advances.................................. 27
SECTION 2.04. Fees ........................................................ 31
SECTION 2.05. Termination or Reduction of the Commitments................... 31
SECTION 2.06. Repayment of Advances and Repurchase of Discounted Notes...... 31
SECTION 2.07. Interest on Revolving Credit Advances......................... 32
SECTION 2.08. Interest Rate and Discount Determination...................... 33
SECTION 2.09. Optional Conversion of Revolving Credit Advances.............. 35
SECTION 2.10. Prepayments of Revolving Credit Advances and Repurchases of
Discounted Notes............................................. 36
SECTION 2.11. Increased Costs............................................... 36
SECTION 2.12. Illegality.................................................... 38
SECTION 2.13. Payments and Computations..................................... 38
SECTION 2.14. Taxes ........................................................ 40
SECTION 2.15. Sharing of Payments, Etc...................................... 43
SECTION 2.16. Defaulting Lenders............................................ 44
SECTION 2.17. Extension of Termination Date................................. 44
SECTION 2.18. Use of Proceeds............................................... 46
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03......................................................... 47
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary........................................ 49
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing....... 50
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing........ 51
SECTION 3.05. Conditions Precedent to Each Extension Date................... 51
SECTION 3.06. Determinations Under Section 3.01............................. 52
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers............... 52
SS_NYL3/160823 9
<PAGE>
ii
Page
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants................................ 55
SECTION 5.02. Negative Covenants................................... 59
SECTION 5.03. Financial Covenants.................................. 62
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.................................... 62
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee.............................. 65
SECTION 7.02. Guarantee Absolute................................... 65
SECTION 7.03. Waivers.............................................. 66
SECTION 7.04. Subrogation.......................................... 66
SECTION 7.05. Continuing Guarantee; Assignments.................... 67
ARTICLE VIII
THE FACILITY AGENT
SECTION 8.01. Authorization and Action............................. 67
SECTION 8.02. Facility Agent's Reliance, Etc....................... 68
SECTION 8.03. Facility Agent and Affiliates........................ 69
SECTION 8.04. Lender Credit Decision............................... 69
SECTION 8.05. Indemnification...................................... 69
SECTION 8.06. Successor Facility Agent............................. 69
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc...................................... 70
SECTION 9.02. Notices, Etc......................................... 71
SECTION 9.03. No Waiver; Remedies.................................. 72
SECTION 9.04. Costs and Expenses................................... 72
SECTION 9.05. Right of Setoff...................................... 73
SECTION 9.06. Binding Effect....................................... 74
SECTION 9.07. Assignments and Participations....................... 74
SECTION 9.08. Designated Subsidiaries.............................. 77
SECTION 9.09. Confidentiality...................................... 78
SECTION 9.10. Governing Law........................................ 78
SECTION 9.11. Execution in Counterparts............................ 78
SECTION 9.12. Judgment............................................. 78
SECTION 9.13. Jurisdiction, Etc.................................... 79
SS_NYL3/160823 9
<PAGE>
iii
Page
SECTION 9.14. Waiver of Jury Trial................................. 80
iv
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Sterling Associated Costs Rate
Schedule III - Borrowers' Accounts
Schedule 4.01 - Environmental Compliance
Schedule 5.02(a) - Existing Liens
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of Master Discounted Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E-1 - Form of Opinion of Counsel for the Borrowers
Exhibit E-2 - Form of Opinion of Special New York Counsel for the
Borrowers
Exhibit E-3 - Form of Opinion of Special Counsel for a Designated
Subsidiary
Exhibit F - Form of Designation Letter
Exhibit G - Form of Acceptance of Process Agent
<PAGE>
SS_NYL3/160823 9
CREDIT AGREEMENT
Dated as of April 23, 1996
THE BLACK & DECKER CORPORATION, a Maryland corporation (the
"Company"), BLACK & DECKER HOLDINGS INC., a Delaware corporation ("Holdings"),
and BLACK & DECKER, a corporation organized under the laws of the United Kingdom
("B&D" and, together with the Company and Holdings, the "Initial Borrowers"),
the banks, financial institutions and other institutional lenders (collectively,
the "Initial Lenders") listed on the signature pages hereof, CITIBANK
INTERNATIONAL PLC ("Citibank International"), as facility agent (together with
any successor agent appointed pursuant to Article VIII, the "Facility Agent")
for the Lenders (as hereinafter defined), and CITIBANK INTERNATIONAL PLC and
MIDLAND BANK PLC ("Midland"), as co-arrangers (the "Co-Arrangers") for the
Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accreted Value" means, with respect to each Discounted Note
comprising part of the same Revolving Credit Borrowing at any date of
determination, an amount equal to the sum of (a) the Discounted
Purchase Price of such Discounted Note and (b) the portion of the
Discount applicable to such Discounted Note that shall have accreted
from the date of such Revolving Credit Borrowing until such date.
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement Value" means, with respect to any Hedge Agreement
at any date of determination, the amount, if any, that would be payable
to any bank thereunder in respect of the "agreement value" under such
Hedge Agreement if such Hedge Agreement were terminated on such date,
calculated as provided in the International Swap Dealers Association,
Inc. Code of Standard Wording, Assumptions and Provisions for Swaps,
1986 Edition.
SS_NYL3/160823 9
<PAGE>
2
"Anniversary Date" means April 23, 1997 and April 23 in each
succeeding calendar year occurring during the term of this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Base Rate Lending Office in the case of a Base
Rate Advance or a Discounted Note and such Lender's Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender or any of
its Affiliates notified by such Lender to the Facility Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, at any time and from time to time,
a percentage per annum equal to the applicable percentage set forth
below for the Performance Level set forth below:
- --------------------------------------------------------------------------------
Performance Eurocurrency
Level Rate Advances
------------------------------------------------------------------------------
I 0.125%
------------------------------------------------------------------------------
II 0.125%
------------------------------------------------------------------------------
III 0.125%
------------------------------------------------------------------------------
IV 0.150%
------------------------------------------------------------------------------
V 0.275%
------------------------------------------------------------------------------
The Applicable Margin for (a) each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and (b) each Discounted Note shall be determined by reference to
the Performance Level in effect two Business Days before the date such
Discounted Note is purchased by a Lender.
"Applicable Percentage" means, at any time and from time to
time, a percentage per annum equal to the applicable percentage set
forth below for the Performance Level set forth below:
- --------------------------------------------------------------------------------
Performance
Level Facility Fee
- --------------------------------------------------------------------------------
I 0.075%
- --------------------------------------------------------------------------------
II 0.100%
- --------------------------------------------------------------------------------
III 0.125%
- --------------------------------------------------------------------------------
IV 0.125%
- --------------------------------------------------------------------------------
V 0.175%
- --------------------------------------------------------------------------------
The Applicable Percentage for the Facility Fee shall be determined by
reference to the Performance Level in effect from time to time.
SS_NYL3/160823 9
<PAGE>
3
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Facility Agent and, if applicable, the Company, in substantially the
form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" means an assumption agreement entered
into by a Non-Consenting Lender and an Assuming Lender, and accepted by
the Facility Agent and the Company, in substantially the form of
Exhibit D hereto, pursuant to which such Assuming Lender agrees to
become a Lender hereunder pursuant to Section 2.17.
"B&D" has the meaning specified in the recital of parties to
this Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base
rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to any Lender,
the office of such Lender or any of its Affiliates specified as its
"Base Rate Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance or in the Assumption Agreement, as the
case may be, pursuant to which it became a Lender, or such other office
of such Lender or any of its Affiliates as such Lender may from time to
time specify to the Company and the Facility Agent for such purpose.
"BFS" means Baltimore Financial Services Company, an unlimited
company organized under the laws of the Republic of Ireland.
"Borrowers" means, collectively, each Initial Borrower and
each Designated Subsidiary that shall become a party to this Agreement
pursuant to Section 9.08.
"Borrowers' Account" means (a) in the case of Advances or
Discounted Notes, the account of one or more of the Borrowers
maintained by such Borrower(s) at the location specified for such
Borrower(s) opposite the currency in which such Advances or such
Discounted Notes are denominated on Schedule III hereto and (b) in any
such case, such other account of the Borrowers (or any one of them) as
is agreed in writing from time to time among the Borrowers and the
Facility Agent for such purpose.
"Borrowing" means a Revolving Credit Borrowing, a Refinancing
Borrowing or a Competitive Bid Borrowing.
SS_NYL3/160823 9
<PAGE>
4
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York, or in
London, England, and, if the applicable Business Day relates to any
Eurocurrency Rate Advances, any LIBO Rate Advances or any Discounted
Notes, on which dealings are carried on in the London interbank market.
"Capitalized Leases" means all leases that have been or should
be, in accordance with generally accepted accounting principles in
effect from time to time, recorded as capitalized leases.
"Cash Flow Coverage Ratio" means, with respect to the Company
and its Subsidiaries at any date of determination, the ratio of (a)
EBITDA of the Company and its Subsidiaries for the most recently
completed consecutive four fiscal quarter period ending on such date to
(b) Consolidated Net Interest Expense for the most recently completed
consecutive four fiscal quarter period ending on such date, in each
case calculated on the basis of generally accepted accounting
principles consistent with those as applied by the Company in the
preparation of the 1995 Audited Financial Statements. Calculations of
the Cash Flow Coverage Ratio shall exclude all effects of unusual or
nonrecurring credits or charges.
"Change of Control" means the occurrence of any of the
following:
(a) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended) becomes the "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of Voting Stock of the Company (or
securities convertible into or exchangeable for such Voting
Stock) representing more than 30% of the combined voting power
of all Voting Stock of the Company (on a fully diluted basis);
or
(b) a majority of the members of the board of
directors of the Company are not Continuing Directors at any
time.
"Citibank" means Citibank, N.A., a national banking
association organized under the laws of the United States.
"Citibank International" has the meaning specified in the
recital of parties to this Agreement.
"Co-Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Commitment" means, with respect to any Lender, the amount set
forth in US Dollars opposite such Lender's name on the signature pages
hereof under the caption "Commitment" or, if such Lender has entered
into an Assignment and Acceptance or an Assumption Agreement, as the
case may be, the amount set forth for such Lender in the Register
maintained by the Facility Agent pursuant to Section 9.07(d), in each
case as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.17.
"Company" has the meaning specified in the recital of parties
to this Agreement.
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5
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance (each of which shall be in US
Dollars or in Sterling).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances denominated in the same currency
from each of the Lenders whose offer to make one or more Competitive
Bid Advances as part of such borrowing has been accepted under the
competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" has the meaning specified in Section
2.03(f).
"Competitive Bid Reduction" means, at any time, the deemed use
of each Lender's Commitment in an amount equal to such Lender's Pro
Rata Share of all outstanding Competitive Bid Advances at such time.
"Confidential Information" means information furnished by or
on behalf of any Borrower to the Facility Agent or any Lender in
connection with this Agreement in a writing designated by such Borrower
as confidential, but does not include any such information that (a) is
or becomes generally available to the public, (b) was available to the
Facility Agent or any Lender on a nonconfidential basis prior to its
disclosure to the Facility Agent or such Lender by any Borrower or any
of its Subsidiaries or (c) is or becomes available to the Facility
Agent or such Lender on a nonconfidential basis from a source other
than any Borrower or any of its Subsidiaries.
"Consenting Lender" has the meaning specified in Section
2.17(b).
"Consolidated Net Interest Expense" means, with respect to the
Company and its Subsidiaries for any period, (a) total interest expense
(including, without limitation, the interest component on all
obligations under Capitalized Leases during such period and all
Discounts accrued during such period) of the Company and its
Subsidiaries for such period plus (b) all dividends declared on
Mandatorily Redeemable Stock during such period less (c) total interest
income of the Company and its Subsidiaries for such period, in each
case determined on a consolidated basis for the Company and its
Subsidiaries and in accordance with generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 1995 Audited Financial Statements.
"Consolidated Net Worth" means, at any date of determination,
the amount by which (a) the total assets of the Company and its
Subsidiaries (including, without limitation, items that are treated as
intangibles in accordance with generally accepted accounting principles
consistent with those applied by the Company in the preparation of the
1995 Audited Financial Statements) at such date exceed (b) the total
liabilities of the Company and its Subsidiaries at such date, in each
case determined on a consolidated basis and in accordance with
generally accepted accounting principles consistent with those applied
by the Company in the preparation of the 1995 Audited Financial
Statements.
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6
"Continuing Director" means an individual who is a member of
the board of directors of the Company on the date of this Agreement or
whose election to the board of directors of the Company is approved by
a majority of the other Continuing Directors.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of another Type or the continuation of Revolving Credit
Advances of the same Type for another Interest Period pursuant to
Section 2.08 or 2.09.
"Credit Suisse" means Credit Suisse, a bank organized under
the laws of Switzerland.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any
time, the portion of any Advance required to be made by such Lender to
any Borrower, or the portion of any Discounted Note required to be
purchased by such Lender from Holdings, pursuant to Sections 2.01 and
2.02 or 2.03 at or prior to such time that has not been made or
purchased by such Lender or by the Facility Agent for the account of
such Lender pursuant to Section 2.02(d) as of such time. In the event
that a portion of a Defaulted Advance shall be deemed made pursuant to
Section 2.16, the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant
to Sections 2.01 and 2.02 or 2.03 on the same date as the Defaulted
Advance so deemed made in part.
"Defaulting Lender" means, at any time, any Lender that at
such time owes a Defaulted Advance.
"Designated Subsidiary" means any Substantially Owned
Subsidiary designated after the date of this Agreement for borrowing
privileges hereunder pursuant to Section 9.08.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Facility Agent, in
substantially the form of Exhibit F hereto, pursuant to which such
Designated Subsidiary shall become a Borrower hereunder in accordance
with Section 9.08.
"Discount" means, for each Discounted Note comprising part of
the same Revolving Credit Borrowing, the amount obtained by dividing
(a) the product of (i) the Face Amount of such Discounted Note
multiplied by (ii) the product of (A)(1) the Eurocurrency Rate referred
to in clause (b) of the definition thereof set forth in this Section
1.01 for such Discounted Note plus (2) the Applicable Margin for such
Discounted Note multiplied by (B) a fraction the numerator of which is
the number of days in the term to Maturity Date of such Discounted Note
and the denominator of which is 360 days by (b) the sum of (i) one and
(ii) the product of (A)(1) the Eurocurrency Rate referred to in clause
(b) of the definition thereof set forth in this Section 1.01 for such
Discounted Note plus (2) the Applicable Margin in effect for such
Discounted Note multiplied by (B) a fraction the numerator of which is
the number of days in the term to Maturity Date of such Discounted Note
and the denominator of which is 360 days.
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7
"Discounted Note" means any payment obligation of Holdings
evidenced by the Master Discounted Note and purchased by a Lender
pursuant to Section 2.01(b).
"Discounted Purchase Price" means, with respect to any
Discounted Note purchased by any Lender, the difference between (a) the
Face Amount of such Discounted Note and (b) the Discount applicable to
such Discounted Note.
"Dollar LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Domestic Sterling LIBO Rate Advances" has the meaning
specified in Section 2.03(a)(i).
"EBITDA" means, for any period, (a) earnings before income
taxes for such period as set forth on the consolidated statements of
earnings of the Company and its Subsidiaries for such period less (or
plus) (b) other income (or expense) of the Company and its Subsidiaries
for such period to the extent included in earnings before income taxes
plus (c) Consolidated Net Interest Expense for such period plus (d) all
charges for depreciation and amortization for such period as set forth
in the consolidated statements of cash flows of the Company and its
Subsidiaries for such period less (e) any net income of BFS to the
extent such net income is derived from any business activities of BFS
unrelated to the Company or any of its Subsidiaries.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a
Lender or (c) any other Person approved by the Facility Agent and the
Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Company nor an Affiliate of the
Company shall qualify as an Eligible Assignee.
"Environmental Action" means any suit, demand, demand letter,
claim, notice of noncompliance or violation, notice of liability or
potential liability, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit
or any Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without
limitation, (a) by any Governmental Authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
Governmental Authority or any other third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial determination relating to pollution or to protection
of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Lien" means a Lien in favor of a Governmental
Authority securing (a) any liability under any Environmental Law or any
Environmental Permit or (b) damages arising from, or remediation costs
or injunctive relief imposed by a Governmental Authority in response
to, the release or threatened release of Hazardous Materials.
SS_NYL3/160823 9
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8
"Environmental Permit" means any permit, license or other
authorization required under any Environmental Law.
"Equivalent" means (a) in US Dollars of another currency on
any date of determination, the equivalent in US Dollars of such other
currency determined by using the quoted spot rate at which Citibank
International's principal office in London, England, offers to exchange
US Dollars for such other currency in London, England, at the open of
business on such date and (b) in any other currency of US Dollars on
any date of determination, the equivalent in such other currency of US
Dollars determined by using the quoted spot rate at which Citibank
International's principal office in London, England, offers to exchange
such other currency for US Dollars in London, England, at the open of
business on such date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within
the meaning of Section 4043(c) of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC or (ii) the requirements of
paragraph (1) of Section 4043(b) of ERISA (without regard to
paragraph (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA could reasonably be
expected to occur with respect to such Plan within the
following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan;
(c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any
Borrower or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA;
(e) the withdrawal by any Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to
any Plan;
SS_NYL3/160823 9
<PAGE>
9
(g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307
of ERISA; or
(h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042
of ERISA, that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender or any of its Affiliates specified as
its "Eurocurrency Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance or the Assumption Agreement,
as the case may be, pursuant to which it became a Lender (or, if no
such office is specified, its Base Rate Lending Office), or such other
office of such Lender or any of its Affiliates as such Lender may from
time to time specify to the Company and the Facility Agent for such
purpose.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing or for the term to Maturity Date of each Discounted Note
comprising part of the same Revolving Credit Borrowing, as the case may
be, an interest rate per annum equal to:
(a) in the case of Domestic Sterling, the sum of
(i)(A) the rate per annum at which deposits in Sterling appear
on page 3750 (or a successor page thereto) of the Dow Jones
Telerate Screen at or about 11:00 A.M. (London time) on the
first day of such Interest Period and for a period equal to
such Interest Period or (B) if such rate does not so appear on
the Dow Jones Telerate Screen at such time, the average
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in Sterling are offered by
the principal office of each of the Reference Banks in London,
England, to prime banks in the London interbank market at or
about 11:00 A.M. (London time) on the first day of such
Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
and (ii) the Sterling Associated Costs Rate; provided that any
determination of the Eurocurrency Rate for any Interest Period
pursuant to subclause (a)(i)(B) above shall be determined by
the Facility Agent on the basis of applicable rates furnished
to and received by the Facility Agent from the Reference Banks
on the first day of such Interest Period, subject, however, to
the provisions of Section 2.08;
(b) in the case of EuroDollars, (i) the rate per
annum at which deposits in US Dollars appear on page 3750 (or
a successor page thereto) of the Dow Jones Telerate Screen at
or about 11:00 A.M. (London time) two Business Days before (A)
in the case of each such Eurocurrency Rate Advance, the first
day of such Interest Period and for a period equal to such
Interest Period and (B) in the case of each such Discounted
Note, the date that such Discounted Note is purchased by a
Lender and for a period equal to
SS_NYL3/160823 9
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10
the term to Maturity Date thereof or (ii) if such rate does
not so appear on the Dow Jones Telerate Screen at such time,
the average (rounded upward to the nearest whole multiple of
1/100 of 1% per annum, if such average is not such a multiple)
of the rates per annum at which deposits in US Dollars are
offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank
market at or about 11:00 A.M. (London time) two Business Days
before (A) in the case of each such Eurocurrency Rate Advance,
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate
Advance comprising part of such Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period
equal to such Interest Period and (B) in the case of each such
Discounted Note, the date such Discounted Note is purchased by
a Lender in an amount substantially equal to such Reference
Bank's Discounted Note comprising part of such Revolving
Credit Borrowing and for a period equal to the term to
Maturity Date thereof; provided that any determination of the
Eurocurrency Rate for any Interest Period pursuant to
subclause (b)(ii) above shall be determined by the Facility
Agent on the basis of applicable rates furnished to and
received by the Facility Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08; or
(c) in the case of EuroSterling, the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum,
if such average is not such a multiple) of the rates per annum
at which deposits in Sterling are offered by the principal
office of each of the Reference Banks in London, England, to
prime banks in the London or Paris interbank market at or
about 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal
to such Interest Period; provided that any determination of
the Eurocurrency Rate for any Interest Period pursuant to this
clause (c) shall be determined by the Facility Agent on the
basis of applicable rates furnished to and received by the
Facility Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in US Dollars or in Sterling that bears interest as
provided in Section 2.07(a)(ii); provided, however, that,
notwithstanding any other provisions of this Agreement, B&D is the only
Borrower that may request Borrowings in Domestic Sterling, and the
Lenders agree to make Advances in Domestic Sterling solely to B&D.
"Eurocurrency Rate Reserve Percentage" means, with respect to
any Lender for any Interest Period for any Eurocurrency Rate Advance
made by such Lender from time to time, the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
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<PAGE>
11
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances is
determined) having a term equal to such Interest Period.
"EuroSterling LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means that certain Credit
Agreement dated as of November 18, 1992 among the Company, Holdings,
B&D Germany, Dom Sicherheitstechnik GmbH & Co. KG, B&D France, the
banks party thereto, Chemical Bank, Credit Suisse and The Bank of Nova
Scotia, as Managing Agents, and Credit Suisse, as Administrative Agent,
as amended, supplemented or otherwise modified through the date hereof.
"Extension Date" has the meaning specified in Section 2.17(b).
"Face Amount" means, with respect to any Discounted Note, the
amount payable to the holder of such Discounted Note on the Maturity
Date thereof.
"Facility Agent" has the meaning specified in the recital of
parties to this Agreement.
"Facility Agent's Account" means (a) in the case of Base Rate
Advances, the account of the US Sub-Agent maintained by the US
Sub-Agent at Citibank at its office at 399 Park Avenue, New York, New
York 10043, Account No. 36852248, Attention: Mr. Philip Green, (b) in
the case of Advances denominated in US Dollars and Discounted Notes
other than Base Rate Advances, the account of the Facility Agent
maintained by the Facility Agent at Citibank at its office at 399 Park
Avenue, New York, New York 10043, Favor - Citibank International plc,
London, Account No. 10963054, Attention: Loans Agency Department, (c)
in the case of Advances denominated in Sterling, the account of the
Facility Agent maintained by the Facility Agent at Citibank at its
office at 11 Old Jewry, London, England EC2R 8DB, Sort Code: 18.50.04,
Favor - Citibank International plc, London, Account No. 558397, and (d)
in any such case, such other account of the Facility Agent as is
designated in writing from time to time by the Facility Agent to the
Borrowers and the Lenders for such purpose.
"Facility Fee" has the meaning specified in Section 2.04.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Facility Agent from three federal funds
brokers of recognized standing selected by it.
"Financial Statements" means, with respect to any Person at
any date of determination:
SS_NYL3/160823 9
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12
(a) the financial statements of such Person and its
Subsidiaries included in the quarterly report of such Person
on Form 10-Q or the annual report of such Person on Form 10-K,
as the case may be, for the period ended on such date, in each
case as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended,
and including all financial statements of such Person and its
Subsidiaries incorporated by reference therein; or
(b) if there is no quarterly report of such Person on
Form 10-Q or annual report of such Person on Form 10-K, as the
case may be, for the period ended on such date, a consolidated
balance sheet of such Person and its Subsidiaries as at such
date and consolidated statements of earnings and cash flow
and, as applicable, changes in financial position of such
Person and its Subsidiaries for the period ended on such date
and for the period commencing at the end of the immediately
preceding fiscal year of such Person and ending on such date,
setting forth in each case in comparative form the
corresponding figures as of the end of and for the
corresponding period in the immediately preceding fiscal year
of such Person and the corresponding figures as of the end of
and for the corresponding year-to-date period in the
immediately preceding fiscal year of such Person, all in
reasonable detail.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in US Dollars or in
Sterling.
"Foreign Borrower" means Holdings, B&D and any other
Designated Subsidiary organized under the laws of a jurisdiction
outside of the United States that becomes a Borrower hereunder.
"Governmental Authority" means any nation or government or any
state, province or other political subdivision thereof, or any
governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board or similar body, whether federal, state, local or foreign.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Holdings" has the meaning specified in the recital of parties
to this Agreement.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company, withholding for United States income taxes, United States
back-up withholding taxes and United
SS_NYL3/160823 9
<PAGE>
13
States withholding taxes and (b) in the case of B&D, withholding for
United Kingdom income taxes and for United Kingdom withholding taxes.
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the deferred
purchase price of property and assets or services (other than
trade payables incurred in the ordinary course of such
Person's business but only if and for so long as the same
remains payable on customary trade terms);
(c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments;
(d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement
with respect to property or assets acquired by such Person
(even though the rights and remedies of the seller or the
lender under such agreement in the event of default are
limited to repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under
Capitalized Leases;
(f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar
extensions of credit;
(g) all obligations of such Person in respect of
Hedge Agreements, valued at the Agreement Value thereof;
(h) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Mandatorily Redeemable Stock, valued at the
greater of (i) its voluntary or involuntary liquidation
preference and (ii) the aggregate amount payable therefor upon
purchase, redemption, defeasance or payment therefor;
(i) all Indebtedness of other Persons referred to in
clauses (a) through (h) above or clause (j) below guaranteed
directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness
or to advance or supply funds for the payment or purchase of
such Indebtedness, (ii) to purchase, sell or lease (as lessee
or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of
such Indebtedness against loss, (iii) to supply funds to, or
in any other manner to invest in, the debtor (including any
agreement to pay for property, assets or services irrespective
of whether such property or assets are received or such
services are rendered) or (iv) otherwise to assure a creditor
against loss; and
SS_NYL3/160823 9
<PAGE>
14
(j) all Indebtedness referred to in clauses (a)
through (i) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property and assets (including,
without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Initial Borrowers" has the meaning specified in the recital
of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or such
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day
of the period selected by the Borrower requesting such Borrowing or
Conversion pursuant to the provisions below and, thereafter, with
respect to any such Eurocurrency Rate Advance, each subsequent period
commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, and subject to clause
(c) of this definition, nine or twelve months, as the Borrower
requesting such Borrowing or Conversion may, upon notice received by
the Facility Agent in accordance with the applicable provisions of
Section 2.02(a), 2.03(a)(i) or 2.09, as the case may be, select;
provided, however, that:
(a) such Borrower may not select any Interest Period
that ends after the scheduled Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(c) in the case of any such Revolving Credit
Borrowing, such Borrower shall not be entitled to select an
Interest Period having a duration of nine or twelve months
unless, by 10:00 A.M. (London time) on the same Business Day
as the date of such Revolving Credit Borrowing, in the case of
any such Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances of the Type described in clause (a) of the
definition of "Eurocurrency Rate" set forth in this Section
1.01, and by 2:00 P.M. (London time) on the third Business Day
prior to the first day of such Interest Period, in the case of
any such Revolving Credit Borrowing comprised of Eurocurrency
Rate Advances of any other Type, each Lender notifies the
Facility Agent that such Lender will be providing funding for
such Revolving Credit Borrowing with such Interest Period
SS_NYL3/160823 9
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15
(the failure of any Lender to so respond by such time being
deemed for all purposes of this Agreement as an objection by
such Lender to the requested duration of such Interest
Period); provided that, if any or all of the Lenders object to
the requested duration of such Interest Period, the duration
of the Interest Period for such Revolving Credit Borrowing
shall be one, two, three or six months, as specified by the
Borrower requesting such Revolving Credit Borrowing in the
applicable Notice of Revolving Credit Borrowing as the desired
alternative to an Interest Period of nine or twelve months;
(d) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next succeeding calendar month, the
last day of such Interest Period shall occur on the
immediately preceding Business Day; and
(e) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Lenders" means, collectively, each Initial Lender and each
other Person that shall become a party hereto pursuant to Section 2.17
or 9.07(a), (b) and (c).
"Leverage Ratio" means, with respect to the Company and its
Subsidiaries at any date of determination, the ratio of (a) the sum
(without duplication) of (i) all Reported Net Indebtedness at such
date, (ii) all Mandatorily Redeemable Stock of the Company and its
Subsidiaries outstanding at such date (valued at the greater of (A) its
voluntary or involuntary liquidation preference and (B) the aggregate
amount payable therefor upon purchase, redemption, defeasance or
payment therefor), determined on a consolidated basis, (iii) the
aggregate book value of all accounts receivable on the books of the
purchasers thereof sold by the Company or any of its Subsidiaries to
any Person other than the Company or any of its Subsidiaries at such
date and (iv) all outstanding obligations of any Person for borrowed
money (other than any such obligations of employees in an aggregate
amount not to exceed $10,000,000 (or the Equivalent thereof in one or
more other currencies)) that is guaranteed or in effect guaranteed by,
or secured by a Lien on the property or assets of, the Company or any
of its Subsidiaries at such date to (b) (i) Consolidated Net Worth at
such date less (ii) the cumulative consolidated net income of BFS to
the extent such net income is derived from any business activities of
BFS unrelated to the Company or any of its Subsidiaries less (or plus)
(iii) the amount by which (A) the equity adjustment for foreign
currency translations used in determining Consolidated Net Worth at
such date exceeds (or is less than) (B) the amount thereof used in
determining Consolidated Net Worth as at December 31, 1995, in each
case calculated on the basis of generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 1995 Audited
SS_NYL3/160823 9
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16
Financial Statements. Calculations of the Leverage Ratio shall exclude
all effects of unusual or nonrecurring credits or charges after
December 31, 1995.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to:
(a) in the case of Domestic Sterling, the sum of
(i)(A) the rate per annum at which deposits in Sterling appear
on page 3750 (or a successor page thereto) of the Dow Jones
Telerate Screen at or about 11:00 A.M. (London time) on the
first day of such Interest Period and for a period equal to
such Interest Period or (B) if such rate does not so appear on
the Dow Jones Telerate Screen at such time, the average
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in Sterling are offered by
the principal office of each of the Reference Banks in London,
England, to prime banks in the London interbank market at or
about 11:00 A.M. (London time) on the first day of such
Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective Pro Rata Shares
of such Competitive Bid Borrowing if such Borrowing were a
Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
and (ii) the Sterling Associated Costs Rate; provided that any
determination of the LIBO Rate for any Interest Period
pursuant to subclause (a)(i)(B) above shall be determined by
the Facility Agent on the basis of applicable rates furnished
to and received by the Facility Agent from the Reference Banks
on the first day of such Interest Period, subject, however, to
the provisions of Section 2.08;
(b) in the case of EuroDollars, (i) the rate per
annum at which deposits in US Dollars appear on page 3750 (or
a successor page thereto) of the Dow Jones Telerate Screen at
or about 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period and for a period equal to
such Interest Period or (ii) if such rate does not so appear
on the Dow Jones Telerate Screen at such time, the average
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in US Dollars are offered by
the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at or
about 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks'
respective Pro Rata Shares of such Competitive Bid Borrowing
if such Borrowing were a Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal
to such Interest Period; provided that any determination of
the LIBO Rate for any Interest Period pursuant to subclause
(b)(ii) above shall be determined by the Facility Agent on the
basis of applicable rates furnished to and received by the
Facility Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08; or
(c) in the case of EuroSterling, the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum,
if such average is not such a multiple) of the rates per annum
at which deposits in Sterling are offered by the principal
office of each of the Reference Banks in London, England, to
prime banks in the London or Paris
SS_NYL3/160823 9
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17
interbank market at or about 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in
an amount substantially equal to the amount that would be the
Reference Banks' respective Pro Rata Shares of such
Competitive Bid Borrowing if such Borrowing were a Revolving
Credit Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period; provided that
any determination of the LIBO Rate for any Interest Period
pursuant to this clause (c) shall be determined by the
Facility Agent on the basis of applicable rates furnished to
and received by the Facility Agent from the Reference Banks
two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i); provided, however, that, notwithstanding any other
provisions of this Agreement, B&D is the only Borrower that may request
Competitive Bid Borrowings in Domestic Sterling, and the Lenders agree
to make Competitive Bid Advances in Domestic Sterling solely to B&D.
"Lien" means any lien, security or other charge or encumbrance
of any kind, or any other type of preferential arrangement entered into
as security, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property, but shall not include
the interest of a third party in receivables sold by any Person to such
third party on a nonrecourse basis.
"Mandatorily Redeemable Stock" means, at any date of
determination, (a) with respect to any Person, any shares of capital
stock of (or other similar ownership interest in) such Person or any
other Person that, at such date, (i) are redeemable, payable or
required to be purchased or otherwise retired or extinguished, or are
convertible into any Indebtedness or other liability of such Person,
whether mandatorily or at the option of the holder thereof (except if
an event must occur to cause or permit the holder thereof to require
redemption or repurchase of such capital stock (or such other ownership
interest) and such event has not occurred at such date), prior to the
then scheduled Termination Date or (ii) are convertible into any shares
of capital stock (or other similar ownership interest) of the types
referred to in subclause (a)(i) above and (b) in addition, with respect
to BFS, its Class A Senior Preferred Shares.
"Master Discounted Note" means a promissory note of Holdings
in favor of the Facility Agent, for the account of the Lenders, in
substantially the form of Exhibit A-3 hereto, evidencing the aggregate
indebtedness of Holdings to the Lenders under or in respect of
Discounted Notes.
"Material Adverse Effect" means any material adverse effect on
(a) the ability of the Company and its Subsidiaries, taken as a whole,
to perform the obligations of the Borrowers under this Agreement and
the Notes or (b) the legality, binding nature, validity or
enforceability of this Agreement or any Note as an obligation of any
Borrower that is intended to be a party thereto.
"Maturity Date" means, for each Discounted Note comprising
part of the same Revolving Credit Borrowing, the date on which the Face
Amount for such Discounted Note becomes due and payable in accordance
with the provisions set forth below, which shall be a day occurring 30,
60, 90 or 180 days after the date on which such Discounted Note is
purchased by a Lender as part of any Revolving Credit Borrowing, as
Holdings may, upon notice received by the
SS_NYL3/160823 9
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18
Facility Agent not later than 11:00 A.M. (London time) on the third
Business Day prior to the date on which such Discounted Note is to be
purchased, select; provided, however, that:
(a) Holdings may not select a Maturity Date for any
Discounted Note that occurs after the scheduled Termination
Date;
(b) the Maturity Dates for all Discounted Notes
comprising part of the same Revolving Credit Borrowing shall
occur on the same date;
(c) Discounted Notes may not be Converted; and
(d) whenever the Maturity Date for any Discounted
Note would otherwise occur on a day other than a Business Day,
such Maturity Date shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such
extension would cause the Maturity Date for such Discounted
Note to be more than 183 days after the date that such
Discounted Note was purchased by a Lender, the Maturity Date
thereof shall occur on the immediately preceding Business Day.
"Midland" has the meaning specified in the recital of parties
to this Agreement.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto acceptable to the Required Lenders.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and at least one
Person other than the Borrowers and the ERISA Affiliates or (b) was so
maintained and in respect of which any Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"1995 Audited Financial Statements" means the Financial
Statements of the Company for the fiscal year of the Company ended
December 31, 1995, as filed with the Securities and Exchange Commission
on Form 10-K for such fiscal year.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means a Revolving Credit Note, a Discounted Note, a
Master Discounted Note or a Competitive Bid Note, as the context may
require.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
SS_NYL3/160823 9
<PAGE>
19
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Level" means Performance Level I, Performance
Level II, Performance Level III, Performance Level IV or Performance
Level V, as appropriate.
"Performance Level I" means, at any date of determination, the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least A- by S&P or at least A3 by Moody's.
"Performance Level II" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I and (b) the non-credit enhanced long-term senior unsecured
public debt of the Company shall have a Public Debt Rating in effect on
such date of at least BBB+ by S&P or at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I or Performance Level II and (b) the non-credit enhanced
long-term senior unsecured public debt of the Company shall have a
Public Debt Rating in effect on such date of at least BBB by S&P or at
least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I, Performance Level II or Performance Level III and (b) the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least BBB- by S&P or at least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, the
Performance Level does not meet the requirements of Performance Level
I, Performance Level II, Performance Level III or Performance Level IV.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced and remain unstayed:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b);
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business
securing obligations (other than Indebtedness for borrowed
money) that (i) are not overdue for a period of more than 30
days or (ii) are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained in accordance with generally accepted accounting
principles in effect from time to time;
(c) pledges or deposits to secure obligations under
workers' compensation laws or other similar legislation (other
than in respect of employee benefit plans subject to ERISA) or
to secure public or statutory obligations;
SS_NYL3/160823 9
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20
(d) Liens securing the performance of, or payment in
respect of, bids, tenders, government contracts (other than
for the repayment of borrowed money), surety and appeal bonds
and other obligations of a similar nature incurred in the
ordinary course of business;
(e) any interest or title of a lessor or sublessor
and any restriction or encumbrance to which the interest or
title of such lessor or sublessor may be subject that is
incurred in the ordinary course of business and, either
individually or when aggregated with all other Permitted Liens
in effect on any date of determination, could not be
reasonably expected to have a Material Adverse Effect; and
(f) easements, rights of way, zoning restrictions and
other encumbrances on title to real property that do not,
either individually or in the aggregate, render title to the
property encumbered thereby unmarketable or materially and
adversely affect the use of such property for its present
purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Commitment at such time and the
denominator of which is the aggregate Commitments of all Lenders at
such time and (b) such amount.
"Public Debt Rating" means, as of any date of determination,
the rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured public debt issued or to be issued by the
Company. For purposes of the foregoing:
(a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage shall be determined by reference to the
available rating;
(b) if, at any time, neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin and
the Applicable Percentage shall be set in accordance with
Performance Level V under the definition of "Applicable
Margin" or "Applicable Percentage", as the case may be;
(c) if the ratings established by S&P and Moody's
shall fall within different Performance Levels, the Applicable
Margin and/or the Applicable Percentage shall be based upon
the higher rating therefrom; provided, however, that, if the
lower of such ratings is two Performance Levels below the
higher of such ratings, the Applicable Margin and the
Applicable Percentage shall be set in accordance with the
Performance Level that is in the middle of such Performance
Levels; and provided further, however,
SS_NYL3/160823 9
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21
that, if the lower of such ratings is more than two
Performance Levels below the higher of such ratings, the
Applicable Margin and/or the Applicable Percentage shall be
deemed to be the average of the Applicable Margins or the
Applicable Percentages, as the case may be, that correspond to
such ratings;
(d) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the first
Business Day after the date on which such change is announced
publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which
ratings are established by it, each reference to the Public
Debt Rating announced by S&P or Moody's shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, Credit Suisse and Midland
or, in the event that any one of such banks ceases to be a Lender
hereunder at any time, any other commercial bank designated by the
Company and approved by the Required Lenders as constituting a
"Reference Bank" hereunder.
"Refinancing Borrowing" means a Revolving Credit Borrowing
consisting of the purchase of Discounted Notes on such date to the
extent that (a) the Discounted Purchase Price thereof is not greater
than the Face Amount of the Discounted Notes maturing on such date and
(b) the proceeds of such Revolving Credit Borrowing are used to
repurchase the Discounted Notes maturing on such date.
"Register" has the meaning specified in Section 9.07(d).
"Reported Net Indebtedness" means, at any date of
determination, (a) the consolidated liabilities of the Company and its
Subsidiaries at such date that are for money borrowed or that
constitute short-term borrowings or long-term debt less (b) all cash
and cash equivalents of the Company and its Subsidiaries at such date,
determined in accordance with generally accepted accounting principles
consistent with those applied by the Company in the preparation of the
1995 Audited Financial Statements.
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of all
Revolving Credit Advances owing to, and the aggregate Face Amount of
all outstanding Discounted Notes purchased by, Lenders at such time,
or, if no such principal amount or Face Amount is outstanding at such
time, Lenders having at least a majority in interest of the Commitments
at such time.
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or the General Counsel of each
Borrower (or other executive officers of any Borrower performing
similar functions) or any other officer of any Borrower or any of its
Subsidiaries responsible for overseeing or reviewing compliance with
this Agreement and the Notes.
SS_NYL3/160823 9
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22
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance.
"Revolving Credit Borrowing" means a Borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made, or of the
simultaneous issuance of Discounted Notes by Holdings and purchased, by
each of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Revolving Credit Advances
made, and the Discounted Notes purchased, by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or any successor thereto acceptable to the Required
Lenders.
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of the Company that, either individually or together
with its Subsidiaries, taken as a whole, (a) accounted for more than
10% of the consolidated assets of the Company and its Subsidiaries as
of such date or (b) accounted for more than 10% of the consolidated net
income of the Company and its Subsidiaries for any of the three most
recently completed fiscal years of the Company prior to such date, in
each case as reflected on the applicable Financial Statements of the
Company at or prior to such date.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and no Person other
than the Borrowers and the ERISA Affiliates or (b) was so maintained
and in respect of which any Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Sterling" and the "(pound)" sign each mean the lawful money
of the United Kingdom of Great Britain and Northern Ireland.
"Sterling Associated Costs Rate" means, for any Interest
Period for all Eurocurrency Rate Advances of the Type described in
clause (a) of the definition of "Eurocurrency Rate" set forth in this
Section 1.01 comprising part of the same Revolving Credit Borrowing and
for all LIBO Rate Advances of the Type described in clause (a) of the
definition of "LIBO Rate" set forth in this Section 1.01 comprising
part of the same Competitive Bid Borrowing, the cost of complying with
the requirements of the Bank of England on the first day of such
Interest Period for such Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be, as determined by the Facility Agent based
on the costs supplied by each of the Reference Banks in accordance with
the formula set forth on Schedule II hereto on such day for such
Advances and, if the then existing Interest Period for any such
Eurocurrency Rate Advances or LIBO Rate Advances has a duration of more
than three months, on each day during such Interest Period every three
months from the first day of such Interest Period.
SS_NYL3/160823 9
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23
"Subsidiary" means, with respect to any Person, any
corporation, partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of
whether at the time shares of capital stock of any other class
or classes of such corporation shall or might have voting
power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such
limited liability company, partnership or joint venture, or
(c) the beneficial interest in such trust or estate,
is at the time, directly or indirectly, owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries; provided, however,
that, for all purposes of this Agreement, BFS shall constitute a
Subsidiary of the Company.
"Substantial Portion" means, at any date of determination, any
part of the consolidated consumer and home improvement products segment
of the Company and its Subsidiaries (a) the assets of which constitute
more than 25% of the consolidated assets of the Company and its
Subsidiaries as of such date and (b) the related net income of which
constituted more than 25% of the consolidated net income of the Company
and its Subsidiaries for any of the three most recently completed
fiscal years of the Company prior to such date, in each case as
reflected on the applicable Financial Statements of the Company at or
prior to such date.
"Substantially Owned Subsidiary" means, at any time, any
Subsidiary of the Company of which (or in which) at least 80% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such Subsidiary (irrespective of whether
at the time shares of capital stock of any other class or
classes of such Subsidiary shall or might have voting power
upon the occurrence of any contingency), and/or
(b) all other ownership interests and rights to
acquire ownership interests in such Subsidiary,
is at such time, directly or indirectly, owned or controlled by the
Company, by the Company and one or more of its wholly owned
Subsidiaries or by one or more wholly owned Subsidiaries of the
Company.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) April 23, 2001,
subject to extension thereof pursuant to Section 2.17, and (b) the date
of termination in whole of the Commitments pursuant to Section 2.05 or
6.01; provided, however, that the Termination Date of any Lender that
is a
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24
Non-Consenting Lender pursuant to Section 2.17 shall be the Termination
Date in effect immediately prior to the applicable Extension Date for
all purposes of this Agreement.
"Type" refers, as the context may require, (a) in the case of
Revolving Credit Advances, to the distinction between Revolving Credit
Advances bearing interest at the Base Rate and at the Eurocurrency Rate
or between Eurocurrency Rate Advances bearing interest at different
bases of interest under the definition of "Eurocurrency Rate" set forth
in this Section 1.01 and (b) in the case of Competitive Bid Advances,
to the distinction between LIBO Rate Advances bearing interest at
different bases of interest under the definition of "LIBO Rate" set
forth in this Section 1.01.
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving
Credit Advances made, and the aggregate Face Amount of all
Discounted Notes purchased, by such Lender (in its capacity as
a Lender) and outstanding at such time; and
(ii) such Lender's Pro Rata Share of the aggregate
principal amount of Competitive Bid Advances made by the
Lenders and outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"US Sub-Agent" means Citibank, in its capacity as a sub-agent
of the Facility Agent with respect to any Revolving Credit Borrowings
consisting of Base Rate Advances.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
ARTICLE II
TERMS OF THE ADVANCES AND THE DISCOUNTED NOTES
SECTION 2.01. The Advances. (a) The Revolving Credit Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make Revolving Credit Advances to any Borrower from time to time on any
Business Day during the period from the Effective Date until
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25
the Termination Date in an aggregate amount for each such Advance (determined in
the case of any Revolving Credit Advance denominated in Sterling by reference to
the Equivalent thereof in US Dollars on such Business Day) not to exceed such
Lender's Unused Commitment on such Business Day. Each Revolving Credit Borrowing
comprised of Revolving Credit Advances shall be in an aggregate amount of not
less than $10,000,000 (or the Equivalent thereof in Sterling) (or, if less, an
aggregate amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by any Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Lenders and accepted by
such Borrower in respect of such Competitive Bid Borrowing, if such Competitive
Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made on the same day
by the Lenders according to their respective Pro Rata Shares of such Revolving
Credit Borrowing. Within the limits of each Lender's Unused Commitment, any
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.10
and reborrow under this Section 2.01(a).
(b) The Discounted Notes. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to purchase Discounted Notes
denominated in US Dollars from Holdings from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate Face Amount for each such Discounted Note not to exceed such Lender's
Unused Commitment on such Business Day. Each Revolving Credit Borrowing
comprised of Discounted Notes shall be in an aggregate Face Amount of not less
than $10,000,000 and shall consist of Discounted Notes purchased on the same day
by the Lenders according to their respective Pro Rata Shares of such Revolving
Credit Borrowing. Within the limits of each Lender's Unused Commitment, Holdings
may borrow under this Section 2.01(b), repurchase pursuant to Section 2.10 and
reborrow under this Section 2.01(b).
SECTION 2.02. Making the Revolving Credit Advances and
Purchasing the Discounted Notes. (a) Each Revolving Credit Borrowing shall be
made on notice, given not later than 11:00 A.M. (London time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing in the
case of a Revolving Credit Borrowing comprised of Eurocurrency Rate Advances
(other than Eurocurrency Advances of the Type referred to in clause (a) of the
definition of "Eurocurrency Rate" set forth in Section 1.01) or Discounted
Notes, not later than 4:00 P.M. (London time) one Business Day prior to the date
of the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances of the Type referred to in
clause (a) of the definition of "Eurocurrency Rate" set forth in Section 1.01 or
not later than 9:00 A.M. (New York City time) on the same Business Day as the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to the
Facility Agent (and, in the case of a Revolving Credit Borrowing consisting of
Base Rate Advances, simultaneously to the US Sub-Agent), which shall give each
Lender prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telephone, confirmed immediately in writing, or by telecopier or telex, in
substantially the form of Exhibit B-1 hereto, specifying therein (i) the
requested date of such Revolving Credit Borrowing (which shall be a Business
Day), (ii) whether Discounted Notes or Advances are to comprise such proposed
Revolving Credit Borrowing and, if Advances, the requested Type of Advances
comprising such proposed Revolving Credit Borrowing, (iii) the requested
aggregate principal amount (or, in the case of Discounted Notes, the requested
aggregate Face Amount) of such Revolving Credit Borrowing and (iv) in the case
of a Revolving Credit Borrowing consisting of (A) Eurocurrency Rate Advances,
the requested initial Interest Period for each such Revolving Credit Advance and
(B) Discounted Notes, (1) the requested Maturity Date of such Discounted Notes
and (2) the amount of proceeds thereof, if any, that are to
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26
constitute a Refinancing Borrowing. In the case of a proposed Revolving Credit
Borrowing consisting of Discounted Notes, the Facility Agent shall notify
Holdings and each Lender not later than 12:00 Noon (London time) on the second
Business Day prior to the date of such proposed Revolving Credit Borrowing, by
telecopier or telex, of the Discount applicable to, and such Lender's Pro Rata
Share of the aggregate Discounted Purchase Price of the Discounted Notes
comprising such Revolving Credit Borrowing. Each Lender shall, before 12:00 Noon
(New York City time) on the date of such Revolving Credit Borrowing, in the case
of a Revolving Credit Borrowing consisting of Base Rate Advances or Discounted
Notes, and before 11:00 A.M. (London time) on the date of such Revolving Credit
Borrowing, in the case of any Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, make available for the account of its Applicable
Lending Office to the Facility Agent at the applicable Facility Agent's Account,
in same day funds, such Lender's Pro Rata Share of such Revolving Credit
Borrowing (other than any Revolving Credit Borrowing to the extent it
constitutes a Refinancing Borrowing), which, in the case of a Revolving Credit
Borrowing comprised of Discounted Notes, shall be equal for each Lender to the
Discounted Purchase Price of the Discounted Note purchased by such Lender as
part of such Revolving Credit Borrowing. After the Facility Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Facility Agent will make such funds available to the Borrower
requesting such Revolving Credit Borrowing at the applicable Borrowers' Account
or at such other address and account number of such Borrower as is reasonably
acceptable to the Facility Agent and as such Borrower shall have specified in
the related Notice of Revolving Credit Borrowing. In the case of any Revolving
Credit Borrowing that constitutes in whole or in part a Refinancing Borrowing,
upon fulfillment of the applicable conditions set forth in Article III, the
Discounted Purchase Price of the Discounted Notes comprising such Refinancing
Borrowing shall be applied to redeem all or a portion of the Discounted Notes
maturing on such Business Day, without any further action by, or any transfer of
funds to or from, Holdings, the Facility Agent or any Lender (other than the
redemption of any portion of the Discounted Notes maturing on such Business Day
that exceeds the amount of such Refinancing Borrowing).
(b) Anything in Section 2.02(a) to the contrary
notwithstanding, (i) a Borrower may not select Eurocurrency Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $5,000,000 or if the obligation of the Lenders to make
Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.08,
2.11 or 2.12 and (ii) the Eurocurrency Rate Advances and the Discounted Notes
may not be outstanding as part of more than ten separate Revolving Credit
Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower that requested such Borrowing. In the
case of any Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurocurrency Rate Advances or
Discounted Notes, the Borrower that requested such Borrowing shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made, or the Discounted Note
to be purchased, by such Lender as part of such Revolving Credit Borrowing when
such Revolving Credit Advance or such Discounted Note, as a result of such
failure, is not made or purchased on such date.
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(d) Unless the Facility Agent shall have received notice from
a Lender prior to the date of any Revolving Credit Borrowing comprised of
Eurocurrency Rate Advances, or prior to 12:00 Noon (New York City time) on the
date of any Revolving Credit Borrowing comprised of Base Rate Advances, that
such Lender will not make available to the Facility Agent such Lender's Pro Rata
Share of such Revolving Credit Borrowing, the Facility Agent may assume that
such Lender has made such Pro Rata Share available to the Facility Agent on the
date of such Revolving Credit Borrowing in accordance with Section 2.02(a) and
the Facility Agent may, in reliance upon such assumption, make available to the
Borrower requesting such Revolving Credit Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made its Pro
Rata Share available to the Facility Agent, such Lender and such Borrower
severally agree to repay to, or to repurchase from, the Facility Agent forthwith
on demand such amount, and (except for any Discounted Notes repurchased by
Holdings pursuant to clause (i) of this sentence) to pay interest thereon, for
each day from the date such amount is made available to such Borrower until the
date such amount is repaid to, or repurchased from, the Facility Agent, at (i)
in the case of such Borrower, the interest rate applicable at the time to the
Revolving Credit Advances, or the Accreted Value at such time of the Discounted
Notes, comprising such Revolving Credit Borrowing and (ii) in the case of such
Lender, the higher of (A) the Federal Funds Rate and (B) the cost of funds
incurred by the Facility Agent in respect of such amount. If such Lender shall
repay to, or repurchase from, the Facility Agent such corresponding amount, such
amount so repaid or so repurchased shall constitute such Lender's Revolving
Credit Advance or the purchase by such Lender of its Discounted Note as part of
such Revolving Credit Borrowing for all purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made, or to purchase the Discounted Note to be purchased, by it as
part of any Revolving Credit Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance or to
purchase its Discounted Note, as the case may be, on the date of such Revolving
Credit Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made, or to purchase the
Discounted Note to be purchased, by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the then scheduled
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate principal amount of all
Advances outstanding at such time plus the aggregate Face Amount of all
Discounted Notes outstanding at such time shall not exceed the aggregate
Commitments of the Lenders at such time (computed without regard to any
Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Facility Agent, by telecopier or
telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein (A) the requested date of such proposed
Competitive Bid Borrowing (which shall be a Business Day), (B) the
requested aggregate amount of such proposed Competitive Bid Borrowing,
(C) whether such proposed Competitive Bid Borrowing shall consist of
Fixed Rate Advances or LIBO Rate Advances, (D) in the case of a
Competitive Bid Borrowing consisting of (1) LIBO Rate Advances, (x) the
requested Type of each such LIBO Rate Advance and (y) the requested
Interest Period for each such LIBO Rate Advance and (2) Fixed Rate
SS_NYL3/160823 9
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Advances, the requested maturity date for repayment of each such Fixed
Rate Advance (which maturity date may not be earlier than the date
occurring seven days after the date of such proposed Competitive Bid
Borrowing or later than the earlier of (x) 180 days after the date of
such proposed Competitive Bid Borrowing and (y) the Termination Date),
(E) the requested interest payment date or dates for each Competitive
Bid Advance comprising part of such proposed Competitive Bid Borrowing,
(F) whether or not the Competitive Bid Advances comprising such
proposed Competitive Bid Borrowing may be prepaid and, if so, whether
with or without penalty, (G) the address and account number of such
Borrower to which the proceeds of such proposed Competitive Bid
Borrowing are to be advanced and (H) the requested other terms, if any,
to be applicable to such proposed Competitive Bid Borrowing, not later
than 4:00 P.M. (London time) (I) at least two Business Days prior to
the date of the proposed Competitive Bid Borrowing, if such Borrower
shall specify in the related Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing,
which shall be denominated in US Dollars or in Sterling, being referred
to herein as "Fixed Rate Advances") or are to be based on the LIBO Rate
referred to in clause (a) of the definition of "LIBO Rate" set forth in
Section 1.01 (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Domestic Sterling LIBO Rate
Advances"), (II) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in
the related Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on LIBO Rate
referred to in clause (c) of the definition of "LIBO Rate" set forth in
Section 1.01 (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "EuroSterling LIBO Rate
Advances") and (III) at least four Business Days prior to the date of
the proposed Competitive Bid Borrowing, if such Borrower shall specify
in the related Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on the LIBO Rate
referred to in clause (b) of the definition of "LIBO Rate" set forth in
Section 1.01 (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Dollar LIBO Rate Advances" and,
together with Domestic Sterling LIBO Rate Advances and EuroSterling
LIBO Rate Advances, "LIBO Rate Advances"); provided, however, that the
Borrowers may not request more than four separate Competitive Bid
Borrowings on any Business Day; and provided further, however, that the
Borrowers may not deliver Notices of Competitive Bid Borrowing more
than once in any period of five consecutive days. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the
Borrower that requested such Competitive Bid Borrowing. The Facility
Agent shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from any Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower requesting the Competitive Bid Advances as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the
Facility Agent (which shall give prompt notice thereof to the Borrower
requesting the Competitive Bid Borrowing), (A) before 2:00 P.M. (London
time) one Business Day prior to the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances or Domestic Sterling, (B) before 12:00 Noon (London
time) one Business Day prior to the date of the proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
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29
of Domestic Sterling LIBO Rate Advances, and (C) before 12:00 Noon
(London time) three Business Days prior to the date of the proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Dollar LIBO Rate Advances or EuroSterling LIBO Rate
Advances, of the minimum amount and maximum amount of each Competitive
Bid Advance that such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso of the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor
and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that if the Facility Agent, in its
capacity as a Lender, shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower requesting such Competitive
Bid Borrowing of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given to the
Facility Agent by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the Facility Agent,
before 12:00 Noon (London time) on the date on which notice of such
election is to be given to the Facility Agent by the other Lenders, and
such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower requesting any particular Competitive Bid
Borrowing shall, in turn, before (A) 3:00 P.M. (London time) one
Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances or Domestic Sterling LIBO Rate Advances, (B) 3:00
P.M. (London time) three Business Days prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of EuroSterling LIBO Rate Advances and (C) 3:00
P.M (London time) three Business Days prior to the date of the proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Dollar LIBO Rate Advances, either:
(1) cancel such Competitive Bid Borrowing by giving
the Facility Agent notice to that effect; or
(2) accept one or more of the offers made by any
Lender or Lenders pursuant to Section 2.03(a)(ii), in its sole
discretion but subject to the next two succeeding sentences,
by giving notice to the Facility Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Facility
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to Section 2.03(a)(ii)) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to Section
2.03(a)(ii) by giving the Facility Agent notice to that
effect; provided, however, that such Borrower may not accept
offers that, in the aggregate, exceed the amount of the
proposed Competitive Bid Borrowing specified in the related
Notice of Competitive Bid Borrowing. The Borrower that
requested such Competitive Bid Borrowing shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders for a particular Competitive
Bid Borrowing. If two or more Lenders have offered the same
interest rate for a particular Competitive Bid Borrowing, the
amount to be borrowed at such interest rate will be allocated
among such
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30
Lenders ratably according to the amount that each such Lender
offered at such interest rate.
(iv) If the Borrower that requested any particular Competitive
Bid Borrowing notifies the Facility Agent that such Competitive Bid
Borrowing is cancelled pursuant to Section 2.03(a)(iii)(1), the
Facility Agent shall give prompt notice thereof to each of the Lenders
and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower that requested any particular Competitive
Bid Borrowing accepts one or more of the offers made by any Lender or
Lenders pursuant to Section 2.03(a)(iii)(2) in respect of such
Competitive Bid Borrowing, the Facility Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in Section
2.03(a)(ii) of the date and the aggregate amount of such Competitive
Bid Borrowing and whether or not any offer or offers made by such
Lender pursuant to Section 2.03(a)(ii) have been accepted by such
Borrower and (B) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, (1) of the amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing and (2) upon receipt, that the Facility Agent
has received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of any Competitive Bid Borrowing shall,
before 12:00 Noon (London time) on the date of such Competitive Bid
Borrowing specified in the notice received from the Facility Agent
pursuant to subclause (v)(A) of the immediately preceding sentence or
any later time when such Lender shall have received notice from the
Facility Agent pursuant to subclause (v)(B)(2) of the immediately
preceding sentence, make available for the account of its Applicable
Lending Office to the Facility Agent at the applicable Facility Agent's
Account, in same day funds, such Lender's portion of such Competitive
Bid Borrowing. Upon fulfillment of the applicable conditions set forth
in Article III and after receipt by the Facility Agent of such funds,
the Facility Agent will make such funds available to the Borrower that
requested such Borrowing at the address and the account number
specified by such Borrower in the related Notice of Competitive Bid
Borrowing or, if no such address and account number are specified in
the related Notice of Competitive Bid Borrowing, at the Facility
Agent's address referred to in Section 9.02. Promptly after (x) each
Competitive Bid Borrowing, the Facility Agent will notify each Lender
of the amount of such Competitive Bid Borrowing, the corresponding
Competitive Bid Reduction resulting therefrom and the dates upon which
such Competitive Bid Reduction commenced and will terminate and (y) the
prepayment of any Competitive Bid Borrowing by the applicable Borrower,
the Facility Agent will notify each Lender of the amount and date of
each such prepayment and the amount, if any, of the corresponding
Competitive Bid Reduction remaining after giving effect thereto.
(vi) If the Borrower that requested any particular Competitive
Bid Borrowing notifies the Facility Agent that it accepts one or more
of the offers made by any Lender or Lenders pursuant to Section
2.03(a)(iii)(2), such notice of acceptance shall be irrevocable and
binding on such Borrower. Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the Notice
of Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding any loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made
SS_NYL3/160823 9
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31
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of not less than $5,000,000 (or the Equivalent thereof in Sterling) and,
following the making of each Competitive Bid Borrowing, the Borrowers shall be
in compliance with the limitation set forth in the proviso to the first sentence
of Section 2.03(a).
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under Section 2.03(a),
repay pursuant to Section 2.06(c) or prepay pursuant to Section 2.03(d), and
reborrow under Section 2.03(a).
(d) The Borrower to which any particular Competitive Bid
Borrowing is made shall have no right to prepay the principal amount of any
Competitive Bid Advance (or any portion thereof) unless, and then only on the
terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to Section
2.03(a)(i) and, if applicable, set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.
(e) The Borrower to which any particular Competitive Bid
Borrowing is made shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for and in the currency of such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to Section 2.03(a)(ii), payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and, if applicable, provided in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(f) Each Borrower agrees that, upon notice by any Lender to
such Borrower (with a copy of such notice to the Facility Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) any Competitive Bid Advance to be made to such
Borrower by such Lender as part of a Competitive Bid Borrowing, such Borrower
shall promptly execute and deliver to such Lender a separate promissory note, in
substantially the form of Exhibit A-2 hereto (each, a "Competitive Bid Note"),
payable to the order of such Lender in a principal amount equal to the amount of
indebtedness of such Borrower resulting from such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. Each Borrower jointly
and severally agrees to pay to the Facility Agent, for the account of each
Lender, a facility fee (the "Facility Fee") on the daily amount of such Lender's
Commitment (whether used or unused) from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until, in each case, the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last Business Day
of each June, September, December and March, commencing June 28, 1996, and on
the Termination Date.
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(b) Agents' Fees. The Company shall pay to the Facility Agent
and each Co-Arranger, for its own account, such fees as may from time to time
be agreed in various fee letters between the Company, on the one hand, and the
Facility Agent or either Co-Arranger, on the other hand.
SECTION 2.05. Termination or Reduction of the Commitments. The
Borrowers shall have the right, upon at least five days' notice to the Facility
Agent, to irrevocably terminate in whole or reduce ratably in part the aggregate
Unused Commitments of the Lenders; provided that each partial reduction shall be
in the aggregate amount of $25,000,000 or an integral multiple of $5,000,000 in
excess thereof or, if less, the aggregate amount of the Commitments at such
time.
SECTION 2.06. Repayment of Advances and Repurchase of
Discounted Notes. (a) Repayment of Revolving Credit Advances. Each Borrower
shall repay to the Facility Agent, for the ratable account of the Lenders, on
the Termination Date the aggregate principal amount of all Revolving Credit
Advances made to such Borrower and outstanding on such date.
(b) Repurchase of Discounted Notes. Holdings shall redeem or
repurchase all Discounted Notes from the Facility Agent, for the ratable account
of the Lenders, (i) on the Maturity Date specified for such Discounted Notes at
the Face Amount of all such Discounted Notes comprising the same Revolving
Credit Borrowing or (ii) if earlier, on the Termination Date at a purchase price
equal to the aggregate Accreted Value of all outstanding Discounted Notes on
such date.
(c) Repayment of Competitive Bid Advances. Each Borrower shall
repay to the Facility Agent, for the account of each Lender that has made a
Competitive Bid Advance, the aggregate outstanding principal amount of each
Competitive Bid Advance made to such Borrower and owing to such Lender on the
earlier of (i) the maturity date therefor, in the case of any such Competitive
Bid Advance that is a Fixed Rate Advance, or the last day of the Interest Period
therefor, in the case of any such Competitive Bid Advance that is a LIBO Rate
Advance, in each case as specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and, if applicable, provided
in the Competitive Bid Note evidencing such Competitive Bid Advance, and (ii)
the Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance made to such Borrower and owing to each
Lender from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable in arrears
quarterly on the last Business Day of each June, September, December
and March during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (A) the Eurocurrency Rate for such
Interest Period for such Revolving Credit Advance plus (B) the
Applicable Margin in effect from time to time during such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that
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occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurocurrency Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on:
(i) the unpaid principal amount of each Revolving Credit
Advance made to such Borrower and owing to each Lender, payable in
arrears on the dates referred to in Section 2.07(a)(i) or 2.07(a)(ii),
at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Revolving Credit Advance pursuant
to Section 2.07(a)(i) or 2.07(a)(ii), as applicable;
(ii) the unpaid principal amount of each Competitive Bid
Advance made to such Borrower and owing to any Lender, payable in
arrears on the date or dates interest is payable on such Competitive
Bid Advance, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Competitive Bid
Advance in the offer made by such Lender pursuant to Section
2.03(a)(ii) and accepted by such Borrower under Section 2.03(a)(v) and,
if applicable, provided in the Competitive Bid Note evidencing such
Competitive Bid Advance; and
(iii) to the fullest extent permitted by applicable law, the
amount of any interest, fees or other amounts (including, without
limitation, any Discounted Note) owing by such Borrower to the Facility
Agent or any Lender under this Agreement or any Note that is not paid
when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on Base
Rate Advances pursuant to Section 2.07(a)(i).
(c) Additional Interest on Eurocurrency Rate Advances. Each
Borrower shall pay to each Lender, so long as and to the extent such Lender
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurocurrency Rate Advance of such Lender, from
the date of such Eurocurrency Rate Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the Eurocurrency Rate for the applicable Interest
Period for such Eurocurrency Rate Advance from (b) the rate obtained by dividing
such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Facility Agent and the
Borrowers of any such additional interest arising in connection with such
Eurocurrency Rate Advance, which notice shall be conclusive and binding, absent
manifest error; provided, however, that no Lender shall be entitled to
additional interest on any Eurocurrency Rate Advance pursuant to this Section
2.07(c) for any period occurring more than 90 days prior to the date that notice
of such additional interest is first provided by such Lender to the Borrowers.
SECTION 2.08. Interest Rate and Discount Determination.
(a) Each Reference Bank agrees to furnish to the Facility Agent timely
information for the purpose of determining each
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Eurocurrency Rate and each LIBO Rate for which such information is required
under the respective definitions thereof set forth in Section 1.01 and, if
necessary, each Discount. If any one of the Reference Banks shall not furnish
such timely information to the Facility Agent for the purpose of determining any
such interest rate or Discount, the Facility Agent shall determine such interest
rate or Discount on the basis of timely information furnished by the remaining
Reference Banks. The Facility Agent shall give prompt notice to the Borrowers
and the Lenders of the applicable interest rate determined by the Facility Agent
for purposes of Section 2.07(a)(i) or 2.07(a)(ii) and, if applicable, the rate,
if any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Type of Eurocurrency Rate
Advances, the Required Lenders notify the Facility Agent that the Eurocurrency
Rate for any Interest Period for such Eurocurrency Rate Advances will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurocurrency Rate Advances of such Type for such
Interest Period, the Facility Agent shall forthwith so notify the affected
Borrowers and the Lenders, whereupon (i) such Eurocurrency Rate Advances will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advances are denominated in US Dollars, Convert
into Base Rate Advances and (B) if such Eurocurrency Rate Advances are
denominated in Sterling, be exchanged for an Equivalent amount of US Dollars and
Converted into Base Rate Advances and (ii) the obligation of the Lenders to make
Eurocurrency Rate Advances of such Type shall be suspended until the Facility
Agent shall notify the Borrowers and the Lenders that the circumstances causing
such suspension no longer exist. If, with respect to Discounted Notes having a
particular Maturity Date, the Required Lenders notify the Facility Agent that
the Eurocurrency Rate referred to in clause (b) of the definition thereof set
forth in Section 1.01 for such Discounted Notes will not adequately reflect the
cost to such Required Lenders of purchasing, funding or maintaining their
respective Discounted Notes, the Facility Agent shall forthwith so notify
Holdings and the Lenders, whereupon the obligation of the Lenders to purchase
such Discounted Notes or any other Discounted Notes shall be suspended until the
Facility Agent shall notify Holdings and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances made or to be made to such
Borrower in accordance with the provisions contained in the definition of
"Interest Period" set forth in Section 1.01, the Facility Agent will forthwith
so notify such Borrower and the Lenders and such Eurocurrency Rate Advances will
automatically, on the last day of the then existing Interest Period therefor,
(i) if such Eurocurrency Rate Advances are denominated in US Dollars, Convert
into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in Sterling, be exchanged for an Equivalent amount of US Dollars and
Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in US Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in
Sterling, be exchanged for an Equivalent amount of US Dollars and Converted into
a Base Rate Advance and (ii) the obligation of the Lenders to make Eurocurrency
Rate Advances, and to purchase Discounted Notes from Holdings, shall be
suspended.
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(e) If fewer than two Reference Banks furnish timely
information to the Facility Agent for determining the Eurocurrency Rate for any
Eurocurrency Rate Advances or the LIBO Rate for any LIBO Rate Advances in
accordance with the respective definitions thereof set forth in Section 1.01 or,
if necessary, the Discount for any Discounted Notes:
(i) the Facility Agent shall forthwith notify the affected
Borrower and the Lenders that the interest rate cannot be determined
for such Eurocurrency Rate Advances or such LIBO Rate Advances or that
the Discount cannot be determined for such Discounted Notes, as the
case may be;
(ii) with respect to Eurocurrency Rate Advances, each such
Eurocurrency Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in US Dollars, Convert into a Base Rate Advance
and (B) if such Eurocurrency Rate Advance is denominated in Sterling,
be exchanged for an Equivalent amount of US Dollars and Converted into
a Base Rate Advance (or, if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances, or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances, or to purchase Discounted Notes, shall
be suspended until the Facility Agent shall notify the Borrowers and
the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. Each Borrower may on any Business Day on which no Default has occurred
and is continuing, upon notice given to the Facility Agent not later than 11:00
A.M. (London time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances into Eurocurrency
Rate Advances or of Eurocurrency Rate Advances (whether or not of the same Type)
of one Interest Period into Eurocurrency Rate Advances of the same Type and of
another Interest Period, or not later than 4:00 P.M. (London time) one Business
Day prior to the date of the proposed Conversion in the case of a Conversion of
Eurocurrency Rate Advances into Base Rate Advances, and, in any case, subject to
the provisions of Sections 2.08, 2.09 and 2.13, Convert all Revolving Credit
Advances comprising one or more Borrowings into one or more Borrowings comprised
of Revolving Credit Advances so long as, after giving effect to any such
Conversion, each Revolving Credit Borrowing is comprised of Revolving Credit
Advances of the same Type and, in the case of any Borrowing comprised of
Eurocurrency Rate Advances, having the same Interest Period; provided, however,
that:
(a) No Conversion of Revolving Credit Advances shall result in
(i) any Revolving Credit Borrowing failing to comply with the second
sentence of Section 2.01 or (ii) the aggregate principal amount of all
outstanding Advances, and the aggregate Face Amount of all outstanding
Discounted Notes, at the time of such Conversion exceeding the
aggregate Commitments of the Lenders at such time;
(b) Any Conversion of Base Rate Advances into Eurocurrency
Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b);
(c) No Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted
under Section 2.02(b); and
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(d) In the case of any Conversion of Eurocurrency Rate
Advances of one Interest Period into Eurocurrency Rate Advances of
another Interest Period or of Eurocurrency Rate Advances into Base Rate
Advances other than on the last day of an Interest Period therefor, the
Borrower requesting such Conversion shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted and (iii) if such Conversion is
into Eurocurrency Rate Advances, the Type and the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower requesting such Conversion.
SECTION 2.10. Prepayments of Revolving Credit Advances and
Repurchases of Discounted Notes. (a) Optional Prepayments. Each Borrower may,
upon at least the same Business Day's notice to the Facility Agent received not
later than 11:00 A.M. (New York City time) in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, and upon at least three Business
Days' notice to the Facility Agent received not later than 11:00 A.M. (London
time) in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances or Discounted Notes, stating the proposed date and aggregate
principal amount of the prepayment or, in the case of Discounted Notes,
aggregate Face Amount of the repurchase, and if such notice is given such
Borrower shall (i) in the case of Revolving Credit Advances, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid,
and (ii) in the case of Discounted Notes, repurchase, by payment of the Accreted
Value to the date of such repurchase, the outstanding Discounted Notes
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part; provided, however, that (A) each partial prepayment or repurchase, as the
case may be, shall be in an aggregate amount of not less than $10,000,000 (or
the Equivalent thereof in Sterling) and (B) in the case of any such prepayment
of Eurocurrency Rate Advances or any such repurchase of Discounted Notes, such
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 9.04(c).
(b) Mandatory Prepayments. If, on any date, the Facility Agent
notifies the Company that the sum of (i) the aggregate principal amount of all
Advances denominated in US Dollars, and the aggregate Face Amount of all
Discounted Notes, outstanding on such date and (ii) the Equivalent in US Dollars
of the aggregate principal amount of all Advances denominated in Sterling
outstanding on such date exceeds 100% of the aggregate Commitments of the
Lenders on such date, then the Company and each of the other Borrowers jointly
and severally agree to prepay or to repurchase, as soon as practicable and in
any event within three Business Days of such notice, subject to the proviso to
this sentence set forth below, the outstanding principal amount of any Advances
owing by such Borrower and/or, in the case of Holdings, the outstanding
Discounted Notes with an Accreted Value to the date of such repurchase in an
aggregate amount sufficient to reduce such sum to an amount not to exceed 100%
of the aggregate Commitments of the Lenders on such date, together with any
interest accrued to the date of such prepayment on the aggregate principal
amount of Advances prepaid; provided that if the aggregate principal amount of
Base Rate Advances outstanding at the time of such required prepayment is less
than the amount of such required prepayment, the portion of such required
prepayment in excess of the aggregate principal amount of Base Rate Advances
then outstanding shall be deferred until the earliest to occur of the last day
of the Interest Period of the outstanding Eurocurrency Rate Advances or the
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outstanding LIBO Rate Advances, the Maturity Date of the outstanding Discounted
Notes and/or the maturity date of the outstanding Fixed Rate Advances, as the
case may be, in an aggregate amount equal to the excess of such required
prepayment. The Facility Agent shall give prompt notice of any prepayment
required under this Section 2.10(b) to the Borrowers and the Lenders, and shall
provide prompt notice to the Borrowers of any such notice of required prepayment
received by it from any Lender.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law, rule or regulation or (ii)
the compliance with, or the implementation or administration (or change in the
administration or enforcement) of, any directive, guideline or request from any
central bank or other Governmental Authority, whether or not having the force of
law, there shall be any increase in the cost to any Lender of agreeing to make
or making, to purchase or purchasing, funding or maintaining Eurocurrency Rate
Advances, LIBO Rate Advances or Discounted Notes, or any reduction in the amount
owing to, or effective return earned or realizable by, any Lender under this
Agreement or any Note in respect of any such Advances or Discounted Notes, as
the case may be (including for purposes of this Section 2.11 any such increased
costs resulting from Taxes or Other Taxes for which the Borrowers are obligated
to reimburse the Facility Agent, the US Sub-Agent or the Lenders under Section
2.14), then the Borrowers jointly and severally agree to pay from time to time
to the Facility Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for all such increased costs or reduced
amounts or return, such additional compensation to be paid by the Borrowers
within 15 days of the date of demand therefor by such Lender (with a copy of
such demand to the Facility Agent) for all additional compensation accrued prior
to such demand and on the dates specified by such Lender in such demand for all
such additional compensation owing to such Lender thereafter; provided, however,
that if a Lender fails to deliver a demand for any additional compensation to
which it is entitled under this Section 2.11(a) within 180 days after such
Lender becomes entitled thereto, such Lender shall only be entitled to
additional compensation for any such amounts incurred prior to the date of such
demand that accrued from and after the date that is 180 days prior to the date
such Lender delivers such demand and for all such additional compensation that
shall accrue on and after the date of such demand; and provided further,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost or reduced amount or return and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost or reduced amount or return
in reasonable detail (including the basis of calculation thereof), submitted to
the Borrowers and the Facility Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law,
rule or regulation or any directive, guideline or request from any central bank
or other Governmental Authority, or any change therein or in the implementation,
administration or enforcement thereof, that is enacted or becomes effective, or
is implemented or is first required or expected to be complied with, after the
date of this Agreement, whether or not having the force of law, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or is based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then the
Borrowers jointly and severally agree to pay
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from time to time to the Facility Agent, for the account of such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder, such additional compensation to be paid
by the Borrowers within 15 days of the date of demand therefor by such Lender
(with a copy of such demand to the Facility Agent) for all additional
compensation accrued prior to such demand and on the dates specified by such
Lender in such demand for all such additional compensation owing to such Lender
thereafter; provided, however, that if a Lender fails to deliver a demand for
any additional compensation to which it is entitled under this Section 2.11(b)
within 180 days after such Lender becomes entitled thereto, such Lender shall
only be entitled to additional compensation for any such amounts incurred prior
to the date of such demand that accrued from and after the date that is 180 days
prior to the date such Lender delivers such demand and for all such additional
compensation that shall accrue on and after the date of such demand. A
certificate as to such amounts in reasonable detail (including the basis of
calculation thereof), submitted to the Borrowers and the Facility Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(c) If a Lender demands additional compensation under Section
2.11(a) or 2.11(b) with respect to Eurocurrency Rate Advances or Discounted
Notes, the Borrowers may (but shall not be obligated to), upon at least five
Business Days' notice to such Lender (with a copy of such notice to the Facility
Agent), elect that, until the circumstances causing such demand for additional
compensation no longer apply to such Lender, all Eurocurrency Rate Advances that
would otherwise be made, and all Discounted Notes that would otherwise be
purchased, by such Lender as part of any Revolving Credit Borrowing shall be
made instead as Base Rate Advances, and all payments of principal of and
interest on such Base Rate Advances shall be made at the same time as payments
on the Eurocurrency Rate Advances or the Discounted Notes, as the case may be,
otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Facility Agent that the
introduction of or any change in or in the interpretation of any law, rule or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or LIBO Rate Advances or to purchase Discounted Notes, or to fund or
maintain Eurocurrency Rate Advances, LIBO Rate Advances or Discounted Notes, (a)
each Eurocurrency Rate Advance or LIBO Rate Advance, as the case may be, of such
Lender will automatically, on the last day of the Interest Period then in effect
therefor if permitted by applicable law or otherwise upon demand, Convert into a
Base Rate Advance or an Advance that bears interest at the rate set forth in
Section 2.07(a)(i) and (b) the obligation of such Lender to make Eurocurrency
Rate Advances or LIBO Rate Advances, to Convert Revolving Credit Advances into
Eurocurrency Rate Advances or to purchase Discounted Notes shall be suspended
until the Facility Agent shall notify the Borrowers (promptly following notice
from such Lender) that the circumstances causing such suspension no longer
exist; provided, however, that before making any such demand, each Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurocurrency Lending Office if
the making of such a designation would allow such Lender or its Eurocurrency
Lending Office to continue to perform its obligations to make Eurocurrency Rate
Advances or LIBO Rate Advances, and to purchase Discounted Notes, or to continue
to fund or maintain Eurocurrency Rate Advances, LIBO Rate Advances or Discounted
Notes, and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. If the obligation of
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a Lender to make Eurocurrency Rate Advances or to purchase Discounted Notes is
suspended pursuant to this Section 2.12, then, until the circumstances causing
such suspension no longer apply to such Lender, all Eurocurrency Rate Advances
that would otherwise be made, and all Discounted Notes that would otherwise be
purchased, by such Lender as part of any Revolving Credit Borrowing shall be
made instead as Base Rate Advances, and all payments of principal of and
interest on such Base Rate Advances shall be made at the same time as payments
on the Eurocurrency Rate Advances or the Discounted Notes, as the case may be,
otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.13. Payments and Computations. (a) Each Borrower
shall make each payment required to be made by it hereunder and under the Notes,
except with respect to principal of, interest on and other amounts arising from,
or incurred in respect of, Advances denominated in Sterling, not later than
11:00 A.M. (New York City time) on the day when due in US Dollars to the
Facility Agent at the applicable Facility Agent's Account, in same day funds.
Each Borrower shall make each payment required to be made by it hereunder and
under the Notes with respect to principal of, interest on and other amounts
arising from, or incurred in respect of, Advances denominated in Sterling not
later than 11:00 A.M. (London time) on the day when due in Sterling to the
Facility Agent at the applicable Facility Agent's Account, in same day funds.
The Facility Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or the Facility Fee ratably
(other than amounts payable pursuant to Section 2.02(c), 2.03, 2.07(c), 2.11,
2.12, 2.14, 2.15, 2.17 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Facility Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves. Upon any Assuming Lender becoming a Lender
hereunder as a result of an extension of the Termination Date pursuant to
Section 2.17, and upon the Facility Agent's receipt of such Lender's Assumption
Agreement and recording the information contained therein in the Register
pursuant to Section 2.17(d), from and after the applicable Extension Date, the
Facility Agent shall make all payments hereunder and under the Notes in respect
of the interest assumed thereby to the Assuming Lender.
(b) All computations of interest that are based on clause (a)
of the definition of "Base Rate" or on clause (a) or (c) of the respective
definitions of "Eurocurrency Rate" and "LIBO Rate" set forth in Section 1.01 and
of Facility Fees shall be made by the Facility Agent on the basis of a year of
365 or 366 days, as the case may be, and all computations of interest that are
based on clause (b) of the definition of "Eurocurrency Rate" and "LIBO Rate" set
forth in Section 1.01 or the Federal Funds Rate and of Discount shall be made by
the Facility Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are payable or
such Discount has accreted. Each determination by the Facility Agent of an
interest rate or Discount hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day,
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and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurocurrency
Rate Advances or LIBO Rate Advances, or the payment of the Face Amount or the
Accreted Value of any Discounted Notes, to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
(d) Unless the Facility Agent shall have received notice from
the Borrower required to make any payment hereunder prior to the date on which
such payment is due to the Lenders hereunder that such Borrower will not make
such payment in full, the Facility Agent may assume that such Borrower has made
such payment in full to the Facility Agent on such date and the Facility Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Facility
Agent, each Lender shall repay to the Facility Agent forthwith on demand such
amount distributed to such Lender, together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Facility Agent, at the higher of (i) the
Federal Funds Rate and (ii) the cost of funds incurred by the Facility Agent in
respect of such amount.
(e) To the extent that the Facility Agent receives funds for
application to the amounts owing by any Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Facility Agent to distribute funds to the Lenders in
accordance with the terms of this Section 2.13, the Facility Agent shall be
entitled to convert or exchange such funds into US Dollars or into Sterling or
from US Dollars to Sterling or from Sterling to US Dollars, as the case may be,
to the extent necessary to enable the Facility Agent to distribute such funds in
accordance with the terms of this Section 2.13; provided that each of the
Borrowers and each of the Lenders hereby agree that the Facility Agent shall not
be liable or responsible for any loss, cost or expense suffered by such Borrower
or such Lender as a result of any conversion or exchange of currencies effected
pursuant to this Section 2.13(e) or as a result of the failure of the Facility
Agent to effect any such conversion or exchange; and provided further that the
Borrowers jointly and severally agree to indemnify the Facility Agent and each
Lender, and hold the Facility Agent and each Lender harmless, for any and all
losses, costs and expenses incurred by the Facility Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange any
currencies) in accordance with this Section 2.13(e).
SECTION 2.14. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender, the US Sub-Agent and the
Facility Agent, taxes imposed on its overall net income and franchise taxes
imposed on it by the jurisdiction under the laws of which such Lender, the US
Sub-Agent or the Facility Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income and franchise taxes imposed on it by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under any of the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by
applicable law to deduct any Taxes from or in respect of any sum paid or payable
hereunder or under any Note to any Lender, the US Sub-Agent or the Facility
Agent, or, if the US Sub-Agent or the Facility Agent shall be required by law to
deduct
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any Taxes from or in respect of any sum paid or payable hereunder or under any
Note to any Lender, (i) the sum payable by such Borrower shall be increased by
such Borrower as may be necessary so that, after making all required deductions
(including deductions, whether by such Borrower, the US Sub-Agent or the
Facility Agent, applicable to additional sums payable under this Section 2.14),
such Lender, the US Sub-Agent and the Facility Agent each receive an amount
equal to the sum they each would have received had no such deductions been made
(for example, and without limitation, if the sum paid or payable hereunder from
or in respect of which a Borrower, the US-Sub Agent or the Facility Agent shall
be required to deduct any Taxes is interest, the interest payable by such
Borrower shall be increased by such Borrower as may be necessary so that, after
making all required deductions (including deductions applicable to additional
interest), such Lender, the US-Sub Agent or the Facility Agent each receive
interest equal to the interest they each would have received had no such
deduction been made), (ii) such Borrower (or, as the case may be and as required
by applicable law, the US Sub-Agent and the Facility Agent) shall make such
deductions and (iii) such Borrower (or, as the case may be and as required by
applicable law, the US Sub-Agent or the Facility Agent) shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender, the US
Sub-Agent and the Facility Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender, the US
Sub-Agent or the Facility Agent, as the case may be, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender, the US Sub-Agent or the Facility Agent, as the case may be, makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Facility Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under any of the Notes, if any
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall within 30 days after any request from the Facility Agent, the US Sub-Agent
or any Lender furnish to the Facility Agent, the US Sub-Agent or such Lender a
certificate from the appropriate taxing authority or an opinion of counsel or of
independent certified public accountants acceptable to the Facility Agent, the
US Sub-Agent or such Lender, as the case may be, stating that such payment is
exempt from Taxes.
(e) Each Lender shall (i) promptly after the Effective Date in
the case of each Initial Lender and promptly after the date of the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which it became a Lender in the case of each other Lender and (ii) from time to
time thereafter upon the obsolescence or expiration of any previously delivered
form or certificate (but only so long as such Lender remains lawfully able to do
so), provide the Company and the Facility Agent with any form or certificate
that is required by any taxing authority (including, if applicable, two original
Internal Revenue Service forms 1001 or 4224, as appropriate (or any successor
form or other form prescribed by the Internal Revenue Service), an original
Internal Revenue Service form W-9 (or any
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successor form), or to the extent permitted by applicable law, as an alternative
to forms 1001 or 4224, two original Internal Revenue Service forms W-8 (or any
successor form prescribed by the Internal Revenue Service), certifying that such
Lender is exempt from United States federal withholding tax pursuant to Section
871(h) or 881(c) of the Internal Revenue Code, together with an annual
certificate stating that such Lender is not a "person" or other entity described
in Section 871(h)(3) or 881(c)(3) of the Internal Revenue Code) as shall be
appropriate to establish, subject to the last sentence of this Section 2.14(e),
that such Lender is exempt from Home Jurisdiction Withholding Taxes on payments
pursuant to this Agreement or the Notes (or, in the case of a Lender that
becomes a party to this Agreement pursuant to Section 2.17 or 9.07(a), (b) and
(c), exempt from or entitled to a reduced rate of Home Jurisdiction Withholding
Taxes on payments pursuant to this Agreement or the Notes that is no greater
than the rate to which the Non-Consenting Lender or the assigning Lender, as
applicable, was entitled); provided, however, that such Lender shall have been
advised in writing by each Borrower (including at the time any renewal form is
due) of the form or certificate applicable to it, determined by reference to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth on Schedule I hereto, in the case of each Initial Lender, or to the
jurisdiction of organization and Applicable Lending Offices of such Lender set
forth in the Assignment and Acceptance or the Assumption Agreement, as the case
may be, pursuant to which it became a Lender, in the case of each other Lender,
or such other branch or office of such Lender designated by such Lender from
time to time as the branch or office at which any of its Advances are to be made
or maintained or its Discounted Notes are to be purchased or maintained. Each
Lender shall promptly notify the Company and the Facility Agent if, because of
any change in the jurisdiction of organization or an Applicable Lending Office
of such Lender, (A) it is required to withdraw or cancel any form or certificate
previously submitted by it or any form or certificate has otherwise become
ineffective or inaccurate or (B) payments to it are or will be subject to
withholding of any Home Jurisdiction Withholding Tax to a greater or lesser
extent than the extent to which payments to it pursuant to this Agreement or the
Notes were previously subject. If any form or document referred to in this
Section 2.14(e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Company and the Facility Agent and shall not be obligated to include in such
form or document such confidential information. No Lender shall be required to
provide a form or certificate pursuant to this Section 2.14(e) to establish that
such Lender is exempt from any withholding for income taxes or withholding taxes
on payments from Holdings pursuant to this Agreement or the Notes.
(f) For any period with respect to which a Lender has failed,
within 30 days of such Lender's receipt of written advice to such effect from
any Borrower, to provide the Company and such Borrower with the appropriate form
or certificate described in Section 2.14(e) (other than if such failure is due
to a change in law (including, without limitation, any change in regulation or
change in the interpretation of any statute or regulation or other rule of law)
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first sentence of
Section 2.14(e)), such Lender shall not be entitled to indemnification under
Section 2.14(a) or 2.14(c) with respect to Taxes imposed by the United States or
the United Kingdom by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) Each Lender shall promptly upon the request of the
Facility Agent take all action (including without limitation the completion of
forms and the provision of information to the appropriate
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taxing authorities) reasonably requested by the Facility Agent, and the Facility
Agent and US Sub-Agent shall, to the extent appropriate and reasonable, take
similar action, to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes imposed by the United Kingdom in relation to
any amounts payable under this Agreement or any of the Notes. The action to be
taken by the Lenders pursuant to this Section 2.14(g) shall include any steps
reasonably requested by the Facility Agent that are prescribed in regulations
promulgated under section 118H of the United Kingdom Income and Corporation
Taxes Act 1988 (assuming enactment of such section as set out in draft form in
the United Kingdom Finance Bill 1996 as of the date of this Agreement) as
conditions for the payments referred to in such section not to be treated as
chargeable payments or chargeable receipts.
(h) Notwithstanding the foregoing provisions of this Section
2.14, no Borrower shall be required to pay any additional amount to any Lender,
the Facility Agent or the US Sub-Agent pursuant to Section 2.14(a) or 2.14(c) in
respect of withholding for United States and/or United Kingdom income taxes or
United States back-up withholding taxes, except to the extent such taxes are
required to be withheld as a result of any amendment to the laws (or any
regulations thereunder) of the United States or the United Kingdom, as the case
may be, or any amendment to, or change in, any interpretation or application of
any such laws or regulations by any Governmental Authority or to the extent such
taxes are required to be withheld with respect to any Borrowings by Holdings
that are comprised of Advances.
(i) Any Lender claiming additional amounts payable pursuant to
this Section 2.14 (including, without limitation, any additional amounts that
any Lender would be entitled to claim under this Section 2.14 with respect to
payments from a Designated Subsidiary that becomes a Borrower pursuant to
Section 9.08) shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or document
requested by any Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be disadvantageous to such
Lender. Each Borrower shall promptly upon request by any Lender, the US
Sub-Agent or the Facility Agent take all actions (including, without limitation,
the completion of forms and the provision of information to the appropriate
taxing authorities) reasonably requested by such Lender, the US Sub-Agent or the
Facility Agent to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes in relation to any amounts payable under this
Agreement.
(j) In the event that an additional payment is made under
Section 2.14(a) or 2.14(c) for the account of any Lender and such Lender, in its
sole opinion, determines that it has received or been granted a credit against
or release or remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such payment, such Lender shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief, remission or
repayment, pay to the Company or to the applicable Borrower such amount as such
Lender shall, in its sole opinion, have determined to be attributable to such
deduction or withholding and as will leave such Lender (after such payment) in
no better or worse position than it would have been in if such Borrower had not
been required to make such deduction or withholding. Nothing contained in this
Section 2.14 shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it deems proper nor oblige any Lender to claim any
tax credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
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SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff or otherwise) on account of the Revolving Credit Advances owing
to it or the Discounted Notes purchased by it (other than pursuant to Section
2.02(c), 2.07(c), 2.11, 2.12, 2.14 or 9.04) in excess of its Pro Rata Share of
payments on account of the Revolving Credit Advances or the Discounted Notes
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them or
the Discounted Notes purchased by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery, together with an
amount equal to such Lender's Pro Rata Share (according to the proportion of (a)
the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
applicable law, exercise all of its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
SECTION 2.16. Defaulting Lenders. If, at any time, (a) any
Lender shall be a Defaulting Lender, (b) such Defaulting Lender shall owe a
Defaulted Advance to any Borrower and (c) such Borrower shall be required to
make any payment under this Agreement or under any Note to or for the account of
such Defaulting Lender, then such Borrower may, so long as no Default under
Section 6.01(a) or 6.01(e) or Event of Default shall have occurred and be
continuing and to the fullest extent permitted by applicable law, set off and
otherwise apply the obligation of such Borrower to make such payment to or for
the account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. If, on any date, any Borrower shall so
set off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the Notes an Advance or
the purchase of a Discounted Note by such Defaulting Lender on the date such
Defaulted Advance was originally required to have been made pursuant to Sections
2.01 and 2.02 or 2.03. Such Advance or such Discounted Note shall be (i) in the
case of a Revolving Credit Borrowing comprised of Discounted Notes, deemed to be
the purchase from Holdings by such Defaulting Lender of a Discounted Note having
the same Maturity Date, and with a Discount based on the same Eurocurrency Rate,
as all other outstanding Discounted Notes comprising part of such Revolving
Credit Borrowing and (ii) in all other cases, a Base Rate Advance, even if the
other Advances comprising such Borrowing shall be Eurocurrency Rate Advances,
Fixed Rate Advances or LIBO Rate Advances on the date such Advance is deemed to
be made pursuant to this Section 2.16, and, in any such case, shall be
considered for all purposes of this Agreement to comprise part of the Borrowing
in connection with which such Defaulted Advance was originally required to have
been made pursuant to Sections 2.01 and 2.02 or 2.03. Each Borrower shall
promptly notify the Facility Agent at any time such Borrower exercises its right
of setoff pursuant to this Section 2.16 and shall set forth in such notice (A)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this Section 2.16.
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SECTION 2.17. Extension of Termination Date. (a) At least 60
days but not more than 90 days prior to any Anniversary Date but in any event
not more than twice prior to the Termination Date, the Company, by written
notice to the Facility Agent, may request an extension of the Termination Date
in effect at such time by one calendar year from its then scheduled expiration.
The Facility Agent shall promptly notify each Lender of such request, and each
Lender shall in turn, in its sole discretion, within 15 days of such notice but
not later than 45 days prior to such next Anniversary Date, notify the Facility
Agent in writing as to whether such Lender will consent to such extension. If
any Lender shall fail to notify the Facility Agent in writing of its consent to,
or refusal of, any such request for extension of the Termination Date at least
45 days prior to the next Anniversary Date, such Lender shall be deemed to be a
Non-Consenting Lender with respect to such request. The Facility Agent shall
notify the Company not later than 40 days prior to such next Anniversary Date of
the decision of the Lenders regarding the Company's request for an extension of
the Termination Date. It is understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the Company for an
extension of the Termination Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.17 and upon
fulfillment of the applicable conditions set forth in Article III, the
Termination Date in effect at such time shall, effective as at such next
Anniversary Date (the "Extension Date"), be extended for one calendar year. If
less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, the Termination Date in
effect at such time shall, upon fulfillment of the applicable conditions set
forth in Article III, effective as at the applicable Extension Date, be extended
as to those Lenders that so consented (each, a "Consenting Lender") but shall
not be extended as to any other Lender (each, a "Non-Consenting Lender");
provided that at least a majority in interest of the aggregate Commitments at
such time (after giving effect to any assumptions of the Commitments of
Non-Consenting Lenders in accordance with subsection (c) of this Section 2.17)
consent in writing to any such request for extension of the Termination Date. To
the extent that the Termination Date is not extended as to any Lender pursuant
to this Section 2.17 and the Commitment of such Lender is not assumed in
accordance with subsection (c) of this Section 2.17 on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without any
further notice or other action by the Company, such Lender or any other Person;
provided that such Non-Consenting Lender's rights under Sections 2.11, 2.14 and
9.04, and its obligations under Section 8.05, shall survive the Termination Date
for such Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.17, the Company may arrange
for one or more Consenting Lenders or other Eligible Assignees to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the rights and obligations of such Non-Consenting Lender under this
Agreement thereafter arising (each Eligible Assignee assuming the Commitment of
one or more Non-Consenting Lenders pursuant to this Section 2.17 being an
"Assuming Lender"), without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender shall in no event be less than $20,000,000 unless the
amount of the Commitment of such Non-Consenting Lender is less than $20,000,000,
in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender the aggregate principal amount of,
and any interest accrued and unpaid to the
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effective date of such assumption on, the outstanding Advances, if any,
of such Non-Consenting Lender;
(ii) any such Consenting Lender or Assuming Lender shall have
purchased from such Non-Consenting Lender all Discounted Notes owing to
such Non-Consenting Lender, if any, at a purchase price equal to the
aggregate Accreted Value thereof to the effective date of such
assumption;
(iii) any accrued and unpaid Facility Fees owing to such
Non-Consenting Lender as of the effective date of such assumption, and
all other accrued and unpaid amounts owing to such Non-Consenting
Lender under this Agreement and the Notes as of the effective date of
such assumption, shall have been paid to such Non-Consenting Lender by
the Borrower or such Consenting Lender or Assuming Lender; and
(iv) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) shall
have been paid.
At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Company and the Facility Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting
Lender, the Company and the Facility Agent, (B) each such Consenting Lender, if
any, shall have delivered written confirmation satisfactory to the Company and
the Facility Agent as to any increase in the amount of its Commitment resulting
from its assumption of one or more Commitments of the Non-Consenting Lenders and
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.17(c)
shall have delivered to the Facility Agent, to be held in escrow on behalf of
such Non-Consenting Lender until the payment in full of all amounts owing to
such Non-Consenting Lender under clauses (i) through (iii) of this Section 2.17,
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i) through (iv) of this
Section 2.17(c), each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for the applicable Non-Consenting Lender(s)
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of any of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder shall,
by the provisions hereof, be released and discharged.
(d) If a majority in interest of the Lenders (after giving
effect to any assumptions pursuant to subsection (c) of this Section 2.17)
consent in writing to a requested extension (whether by execution and delivery
of an Assumption Agreement or otherwise) not later than one Business Day prior
to an Extension Date, the Facility Agent shall so notify the Company, and, upon
fulfillment of the applicable conditions set forth in Article III, the
Termination Date then in effect shall be extended for an additional one-year
period, as described in subsection (a) of this Section 2.17, and all references
in this Agreement and in the Notes to the "Termination Date" shall, with respect
to each Consenting Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each Extension
Date, the Facility Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
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(e) Within ten Business Days after each Extension Date, each
Borrower shall, at its own expense, execute and deliver to the Facility Agent
Revolving Credit Notes payable to the order of each Consenting Lender (in the
case of each such Consenting Lender, in exchange for the Revolving Credit Note
surrendered by such Consenting Lender to the Facility Agent), if any, and each
Assuming Lender, if any, in each case dated such Extension Date and in
substantially the form of Exhibit A-1 hereto and in an amount equal to the
Commitment of such Consenting Lender or Assuming Lender, as the case may be,
after giving effect to such extension of the Termination Date. The Facility
Agent, upon receipt of such Revolving Credit Notes, shall promptly deliver such
Revolving Credit Notes to the respective Consenting Lenders and Assuming
Lenders.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances
and the Discounted Notes shall be available (and each Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of such Borrower
and its Subsidiaries not otherwise prohibited under the terms of this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) No event or development shall have occurred or failed to
occur, and no action shall have been taken or failed to have been
taken, by or on behalf of any Borrower or any of its Subsidiaries that,
either individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect since December 31, 1995. No
fact or circumstance shall be known by any Borrower that, either
individually or in the aggregate, has had or could reasonably be
expected to have (so far as such Borrower can reasonably foresee) a
Material Adverse Effect since December 31, 1995.
(b) All governmental and other third party consents and
approvals necessary in connection with this Agreement and the Notes and
with the transactions contemplated hereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Lenders) and shall remain in effect; and no law or
regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions on this Agreement or any Note or upon any of the
transactions contemplated hereby.
(c) The Company shall have notified each Lender and the
Facility Agent in writing as to the proposed Effective Date.
(d) All accrued fees and, to the extent invoices have been
delivered to the Company on or prior to such date, all accrued expenses
of the Facility Agent and the Lenders (including, without limitation,
all accrued fees and expenses of counsel for the Facility Agent and the
Co-Arrangers) shall have been paid.
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(e) All of the amounts owing by any Borrower or any of its
Subsidiaries under the Existing Credit Agreement shall have been, or
concurrently with any initial Borrowing made on the Effective Date
shall be, paid in full, and all commitments of the lenders thereunder
shall have been, or concurrently with any initial Borrowing made on the
Effective Date shall be, terminated in accordance with the terms of
such Agreement.
(f) On the Effective Date, the following statements shall be
true and the Facility Agent shall have received for the account of each
Lender a certificate of the Company, on behalf of itself and each other
Borrower, signed by a duly authorized officer of the Company, dated
such date, stating that:
+ (i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, as
though made on and as of such date;
(ii) No event has occurred and is continuing, or
shall occur as a result of the occurrence of the Effective
Date, that constitutes a Default; and
(iii) All of the amounts owing by any Borrower or any
of its Subsidiaries under the Existing Credit Agreement shall
have been, or concurrently with any initial Borrowing made on
the Effective Date shall be, paid in full, and all commitments
of the lenders thereunder shall have been or concurrently with
any initial Borrowing made on the Effective Date shall be,
terminated in accordance with the terms of such Agreement.
(g) The Facility Agent shall have received on or before the
Effective Date each of the following, dated the Effective Date and in
form and substance satisfactory to the Facility Agent:
(i) The Revolving Credit Notes of each of the
Borrowers to the order of each of the Lenders, respectively.
(ii) A certificate of the Secretary or an Assistant
Secretary (or person performing similar functions) of each of
the Borrowers certifying (A) appropriate resolutions of the
board of directors (or persons performing similar functions)
of such Borrower authorizing Borrowings under this Agreement
and its Notes, and all documents evidencing other necessary
corporate (or equivalent) action and governmental approvals,
if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws
(or the equivalent thereof) of such Borrower (copies of which
shall be attached thereto) and (C) the names and true
signatures of the officers of such Borrower authorized to sign
this Agreement and its Notes and the other documents to be
delivered by such Borrower hereunder.
(iii) A copy of the charter or articles (or other
similar organizational documents) of each Borrower, certified
(as of a date reasonably near the Effective Date) as being a
true and complete copy thereof by the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction
of organization of such Borrower or, if such certificate is
not provided in the jurisdiction of organization of any
Borrower, certified
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(as of a date reasonably near the Effective Date) as being a
true and complete copy thereof by a duly authorized officer of
such Borrower.
(iv) A copy of a certificate of the Secretary of
State (or other appropriate Governmental Authority) of the
jurisdiction of organization of such Borrower, dated
reasonably near the Effective Date, certifying that such
Borrower is duly organized and in good standing (or the
equivalent thereof) under the laws of the jurisdiction of its
organization.
(v) Favorable opinions of (A) Miles & Stockbridge, a
Professional Corporation, counsel for the Borrowers, in
substantially the form of Exhibit E-1 hereto, (B) Winthrop,
Stimson, Putnam & Roberts, special New York counsel for the
Borrowers, in substantially the form of Exhibit E-2 hereto,
and (C) McKenna & Co., special United Kingdom counsel for B&D,
in form and substance satisfactory to the Facility Agent
(which form shall be substantially similar to Exhibit E-3
hereto), and, in each of the foregoing cases, addressing such
other matters as the Facility Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Facility Agent and the Co-Arrangers.
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an initial
Advance to each Designated Subsidiary following its designation as a Borrower
hereunder pursuant to Section 9.08 on the occasion of the initial Borrowing
thereby is subject to the Facility Agent's receipt on or before the date of such
initial Borrowing of each of the following, in form and substance satisfactory
to the Facility Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit F hereto.
(b) A Revolving Credit Note of such Designated Subsidiary to
the order of each of the Lenders, respectively.
(c) A certificate of the Secretary or an Assistant Secretary
(or person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing
other necessary corporate (or equivalent) action and governmental
approvals, if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws (or the
equivalent thereof) of such Designated Subsidiary (copies of which
shall be attached thereto) and (C) the names and true signatures of the
officers of such Designated Subsidiary authorized to sign the
Designation Letter of such Designated Subsidiary and its Notes and the
other documents to be delivered by such Designated Subsidiary
hereunder.
(d) A copy of the charter or articles (or other similar
organizational document) of such Designated Subsidiary, certified (as
of a date reasonably near the date of such Borrowing)
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as being a true and complete copy thereof by the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction of
organization of such Designated Subsidiary or, if such certificate is
not provided in the jurisdiction of organization of such Designated
Subsidiary, certified (as of a date reasonably near the date of such
Borrowing) as being a true and complete copy thereof by a duly
authorized officer of such Designated Subsidiary.
(e) A copy of a certificate of the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction of
organization of such Designated Subsidiary, dated reasonably near the
date of such Borrowing, certifying that such Designated Subsidiary is
duly organized and in good standing (or the equivalent thereof) under
the laws of the jurisdiction of its organization.
(f) A certificate signed by a duly authorized officer of such
Designated Subsidiary, dated as of the date of such Borrowing,
certifying that such Designated Subsidiary has obtained all
authorizations, consents, approvals (including, without limitation,
exchange control approvals) and licenses of any Governmental Authority
or other third party necessary for such Designated Subsidiary to
execute and deliver its Designation Letter and its Notes and to perform
its obligations under this Agreement or any of its Notes.
(g) Evidence of acceptance by the Company of its appointment
as the process agent of such Designated Subsidiary in accordance with
Section 9.13(a), in substantially the form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Designated
Subsidiary reasonably acceptable to the Facility Agent, dated the date
of such Borrowing, in substantially the form of Exhibit E-3 hereto
(subject to the assumptions, qualifications and limitations customary
for legal opinions in the jurisdiction for which such opinion is being
delivered), and addressing such other matters as any Lender through the
Facility Agent may reasonably request.
(i) Such other documents, opinions and other information as
any Lender, through the Facility Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance, or
to purchase a Discounted Note, as the case may be, on the occasion of each
Revolving Credit Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of Revolving Credit Borrowing and the acceptance by the
Borrower that requested such Revolving Credit Borrowing of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Revolving Credit Borrowing such
statements are true):
(i) Except in the case of a Refinancing Borrowing, the
representations and warranties contained in Section 4.01 (and, if such
Revolving Credit Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter) are correct on and as
of the date of such Revolving Credit Borrowing, before and after giving
effect to such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
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(ii) No event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(iii) In the case of a Revolving Credit Borrowing consisting
of Discounted Notes (including, without limitation, a Refinancing
Borrowing), the Facility Agent shall have received an appropriately
completed and duly executed Master Discounted Note evidencing such
Revolving Credit Borrowing;
and (b) the Facility Agent shall have received such other documents, opinions
and other information as any Lender, through the Facility Agent, may reasonably
request. Nothing in this Section 3.03 shall be construed to require any Borrower
to satisfy the conditions set forth herein solely upon the Conversion of one or
more Borrowings in accordance with the terms of this Agreement.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Facility Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto and (b) on
the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower that requested such Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(i) The representations and warranties contained in Section
4.01 (and, if such Competitive Bid Borrowing shall have been requested
by a Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Letter) are correct
on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; and
(ii) No event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.05. Conditions Precedent to Each Extension Date. The
obligation of each Consenting Lender and each Assuming Lender to extend the
Termination Date pursuant to Section 2.17 is subject to the conditions precedent
that (a) the Facility Agent shall have accepted all of the Assumption Agreements
of the Assuming Lenders and received all of the written confirmations of
increases in the Commitments of the Consenting Lenders for such Extension Date,
and all of the Non-Consenting Lenders shall have received all of the amounts
required to have been paid to them under Section 2.17(c) on or prior to such
Extension Date, and (b) on such Extension Date the following statements shall be
true (and a duly authorized officer of the Company shall certify the
completeness and accuracy of such statements to the Facility Agent and the
Lenders on and as of such Extension Date):
(i) No event or development has occurred or failed to occur,
and no action has been taken or failed to have been taken, by or on
behalf of any Borrower or any of its Subsidiaries that, either
individually or in the aggregate, has had or could reasonably be
expected to have a
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52
Material Adverse Effect since December 31, 1995. No fact or
circumstance is known by any Borrower that, either individually or in
the aggregate, has had or could reasonably be expected to have (so far
as such Borrower can reasonably foresee) a Material Adverse Effect
since December 31, 1995;
(ii) The representations and warranties contained in Section
4.01 are correct on and as of such Extension Date, before and after
giving effect to such Extension Date; and
(iii) No event has occurred and is continuing, or would result
from the occurrence of such Extension Date, that constitutes a Default.
SECTION 3.06. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Facility Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Company, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Facility Agent shall promptly notify the
Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Borrower and each of its Significant Subsidiaries (i)
are Persons duly organized, validly existing and, to the extent such
concept is applicable in the jurisdiction of organization of such
Borrower or such Subsidiary, in good standing under the laws of the
jurisdictions of their respective organization, (ii) are duly qualified
and, to the extent such concept is applicable in such jurisdiction, in
good standing as foreign corporations (or the equivalent thereof) in
each other jurisdiction in which they own or lease property or in which
the conduct of their respective businesses requires them to so qualify
or be licensed, except where the failure to so qualify or be licensed,
either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all
requisite power and authority to own or lease and operate their
properties and to carry on their respective businesses as now conducted
and as proposed to be conducted.
(b) The execution, delivery and performance by each Borrower
of this Agreement and its Notes, and the consummation of the
transactions contemplated hereby, are within such Borrower's powers,
have been duly authorized by all necessary action (including, without
limitation, all necessary stockholders' action), and do not contravene
(i) such Borrower's charter or by-laws (or similar organizational
documents), (ii) any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award or (iii) any
contract, loan
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53
agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting such Borrower, any of its
Subsidiaries or any of their properties or assets.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or any other third
party is required for the due execution, delivery and performance by
any Borrower of this Agreement or any of its Notes, or for the
consummation of any of the transactions contemplated hereby, except as
have been obtained or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by each
Borrower intended to be a party thereto. This Agreement is, and each of
the Notes when delivered hereunder will be, the legal, valid and
binding obligation of each Borrower intended to be a party thereto,
enforceable against such Borrower in accordance with their respective
terms, except to the extent that the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally or by general
principles of equity.
(e) The most recently completed annual Financial Statements of
the Company and its Subsidiaries, copies of which have been furnished
to each Lender, fairly present the consolidated financial condition of
the Company and its Subsidiaries as at the date of such Financial
Statements and the consolidated results of operations of the Company
and its Subsidiaries for the fiscal year of the Company ended on the
date of such Financial Statements, all in accordance with generally
accepted accounting principles in effect at the time such Financial
Statements were prepared.
(f) All information, exhibits and reports (other than
financial statements, analysts' reports, projections and assumptions)
furnished by or on behalf of each Borrower to any Lender in connection
with the negotiation of, or pursuant to the terms of, this Agreement or
any of its Notes do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
contained therein not misleading, in light of the circumstances under
which any such statements were made.
(g) There is no action, suit, investigation, litigation or
proceeding (including, without limitation, any Environmental Action)
against or in any other way affecting any Borrower or any of its
Subsidiaries or any of its respective properties or businesses pending
or, to the best knowledge of such Borrower or any of its Subsidiaries,
threatened before any court, Governmental Authority or arbitrator that
(i) either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (ii) purports to
adversely affect the legality, validity or enforceability of this
Agreement or any of its Notes or the consummation of the transactions
contemplated hereby.
(h) None of the Borrowers is engaged in the business of
extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance or any
Discounted Note will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying
margin stock.
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54
(i) Neither any Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined
in the Investment Company Act of 1940, as amended). Neither the making
of any Advances nor the purchase of any Discounted Notes nor the
application of the proceeds or the repayment or repurchase thereof by
any Borrower, nor the consummation of any of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(j) No ERISA Event has occurred or could reasonably be
expected to occur with respect to any Plan that, when aggregated with
any and all other ERISA Events that have occurred or could reasonably
be expected to occur with respect to any Plan, has resulted or could
reasonably be expected to result in liability of any Borrower or any
ERISA Affiliate that exceeds $20,000,000 (or the Equivalent thereof in
one or more other currencies) in the aggregate.
(k) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 60 percent, and there has been no material adverse
change in the funding status of any such Plan since such date;
provided, however, that no breach of this Section 4.01(k) shall be
deemed to have occurred unless the Insufficiency with respect to any
such Plan exceeds $5,000,000 (or the Equivalent thereof in one or more
other currencies).
(l) Neither any Borrower nor any ERISA Affiliate (i) has
incurred or could reasonably be expected to incur any Withdrawal
Liability with respect to any Multiemployer Plan or (ii) has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA; and, to the knowledge of any Borrower, no such
Multiemployer Plan could reasonably be expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, that has
resulted or could reasonably be expected to result in a liability of
any Borrower or any ERISA Affiliate that exceeds $20,000,000 (or the
Equivalent thereof in one or more other currencies) in the aggregate
with respect to clauses (i) and (ii) of this Section 4.01(l).
(m) Except as set forth on Schedule 4.01 hereto, (i) the
operations and properties of each Borrower and each of its Subsidiaries
comply with all applicable Environmental Laws and Environmental
Permits, except to the extent the failure to so comply, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; (ii) all Environmental Actions against
any Borrower or any of its Subsidiaries for noncompliance with such
Environmental Laws and Environmental Permits that have been resolved
have been resolved without any ongoing obligations or costs that,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and (iii) to the best knowledge of
any Borrower or any of its Subsidiaries, no circumstances exist that
(A) could form the basis of an Environmental Action against such
Borrower or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect or (B) could cause any of their respective properties to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
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55
(n) Except as set forth on Schedule 4.01 hereto, there have
been no releases, discharges or disposals of Hazardous Materials on any
property owned or operated by any Borrower or any of its Subsidiaries
or, to the best knowledge of such Borrower or any such Subsidiary, on
any property formerly owned or operated by any Borrower or any of its
Subsidiaries that (taking into account, among other things, the
reasonable likelihood of an adverse determination and the availability
of contributions from other potentially responsible parties), either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(o) Except as set forth on Schedule 4.01 hereto, neither any
Borrower nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge
or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
owned or operated by any Borrower or any of its Subsidiaries have been
disposed of in a manner that, either individually or in the aggregate,
could not reasonably be expected (taking into account, among other
things, the reasonably likelihood of an adverse determination and the
availability of contributions from other potentially responsible
parties) to have a Material Adverse Effect.
(p) The Advances, the Discounted Notes and all related
obligations of each Borrower under this Agreement and its Notes rank
pari passu with all other unsecured obligations of such Borrower that
are not, by their terms, expressly subordinate to such other
obligations of such Borrower.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance
or any Discounted Note shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance
with ERISA and Environmental Laws, except where, and for so long as,
the failure to so comply (i) has been excused or waived under
applicable law or (ii) either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Comply,
and cause each of its Subsidiaries to comply, with the terms of all of
its contracts, loan agreements, indentures, mortgages, deeds of trust,
leases and other agreements and instruments, the violation or breach of
which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
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(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property and
assets; provided, however, that neither any Borrower nor any of its
Subsidiaries shall be required to pay or discharge (A) any taxes,
assessments, reassessments, charges, levies or claims that, either
individually or in the aggregate, do not exceed $15,000,000 (or the
Equivalent thereof in one or more other currencies) at any time or (B)
any such tax, assessment, reassessment, charge, levy or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained in accordance with generally
accepted accounting principles in effect from time to time, unless and
until, in any of the foregoing cases, any Lien resulting therefrom
attaches to its property and enforcement, collection, levy or
foreclosure proceedings shall have been commenced and remain unstayed
in respect thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, (i) insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
of similar size and owning similar properties in the same general areas
in which such Borrower or such Subsidiary operates and (ii) additional
insurance to the extent required under applicable law, rule, regulation
or order unless, in either case, the failure to maintain such
insurance, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(d) Preservation of Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory), licenses and franchises (whether
arising as a matter of contract or under applicable law or regulation);
provided, however, that any Borrower or any of its Subsidiaries may
consummate any transaction otherwise permitted under Section 5.02(b);
and provided further that neither any Borrower nor any of its
Subsidiaries shall be required to preserve (i) any Subsidiary of the
Company that is not a Borrower or (ii) any right, license or franchise
if management of such Borrower shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the
business or the continued operations of such Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to such Borrower, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, during normal business hours and upon reasonable notice, permit
the Facility Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account, and visit and inspect the
properties, of any Borrower or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of any Borrower or any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
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(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
material properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Use of Proceeds. Use all of the proceeds of the Advances
and the Discounted Notes solely for general corporate purposes of such
Borrower and its Subsidiaries not otherwise prohibited under the terms
of this Agreement.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, except for transactions between or among the
Company and its Subsidiaries or between or among Subsidiaries of the
Company not otherwise prohibited under this Agreement that, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50
days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, commencing with the fiscal
quarter of the Company ending March 31, 1996, the Financial
Statements of the Company and its Subsidiaries as of the end
of such fiscal quarter, duly certified by the chief financial
officer or the treasurer of the Company as (A) having been
prepared in accordance with generally accepted accounting
principles in effect at the time such Financial Statements
were prepared and (B) fairly presenting the consolidated
financial condition of the Company and its Subsidiaries as at
the last day of such fiscal quarter and the consolidated
results of operations of the Company and its Subsidiaries for
such period;
(ii) as soon as available and in any event within 95
days after the end of each fiscal year of the Company,
commencing with the fiscal year of the Company ending December
31, 1996, a copy of the annual report, prepared in the manner
required under Form 10-K, for such fiscal year for the Company
and its Subsidiaries containing the Financial Statements of
the Company and its Subsidiaries as of the end of such fiscal
year, in each case accompanied by an opinion of Ernst & Young
or other independent certified public accountants of
nationally recognized standing in the United States and
reasonably acceptable to the Facility Agent that is
unqualified as to going concern and scope of audit and is
otherwise in scope and substance acceptable to the Required
Lenders, together with a certificate of such accounting firm
addressed to the Facility Agent and the Lenders stating that
in the course of the regular audit of the business of the
Company and its Subsidiaries, which audit was conducted by
such accounting firm in accordance with generally accepted
auditing standards, nothing has come to the attention of such
accountants that causes them to believe that the Company has
failed to comply with the covenants set forth in Section 5.03;
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(iii) as soon as available after the end of each
fiscal year of each Foreign Borrower, a balance sheet of such
Foreign Borrower as of the end of such fiscal year and the
related statement of income of such Foreign Borrower for such
fiscal year and such other statements for such fiscal year as
are required to be included in the statutory report of the
jurisdiction in which such Foreign Borrower resides, in each
case prepared in accordance with historical convention and
with generally accepted accounting principles prevailing in
such jurisdiction at the time such financial statements are
delivered;
(iv) simultaneously with each delivery of the
Financial Statements referred to in clauses (i) and (ii) of
this Section 5.01(j), (A) a certificate of the chief financial
officer or the treasurer of the Company (1) stating that no
Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature
thereof and the action that the Company has taken and/or
proposes to take with respect thereto and (2) setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with each of the covenants set forth in Section
5.03 and (B) in the event of any change in the generally
accepted accounting principles used in the preparation of such
Financial Statements from those used in the preparation of the
1995 Audited Financial Statements, a statement of
reconciliation, if and to the extent necessary for the
determination of compliance with each of the covenants set
forth in Section 5.03, conforming such Financial Statements to
generally accepted accounting principles consistent with those
applied by the Company in the preparation of the 1995 Audited
Financial Statements;
(v) as soon as possible and in any event within five
days after any Responsible Officer knows or has reason to know
of the occurrence of each Default, or the occurrence or
nonoccurrence of any event, development or circumstance that,
either individually or in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect, a
statement of such Responsible Officer setting forth the
details of such Default or such event, development or
circumstance, as the case may be, and the action that such
Borrower has taken and/or proposes to take with respect
thereto;
(vi) promptly upon receipt thereof, copies of any
report on material weaknesses in the financial controls of the
Company and its Subsidiaries, taken as a whole, prepared by
any independent certified public accountants of the Company in
connection with their annual audit;
(vii) promptly after the sending or filing thereof,
copies of all reports that the Company sends to its
securityholders, and copies of all reports and registration
statements (other than registration statements filed on Form
S-8 or otherwise relating to securities being offered and sold
under, or interests in, employee benefit plans), if any, that
any Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(viii) promptly after the commencement thereof,
notice of all actions, suits, investigations, litigations and
proceedings before any court, Governmental Authority or
arbitrator against or in any other way affecting any Borrower
or any of its Subsidiaries or any of their respective
properties or businesses of the type described in Section
4.01(g);
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(ix) promptly and in any event within five Business
Days after becoming aware thereof, notice of any change in the
rating assigned by any nationally recognized rating agency to
any securities issued by any Borrower or any of its
Subsidiaries and the effective date of such change, together
with a copy of such notice if available at such time;
(x) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against any
Borrower or any of its Subsidiaries, or of any noncompliance
by any Borrower or any of its Subsidiaries with any
Environmental Law or any Environmental Permit, that (A) either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (B) could cause any
property of such Borrower or such Subsidiary to be subject to
any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and
(xi) such other information respecting the
businesses, assets, liabilities, financial condition, results
of operations or business prospects of any Borrower or any of
its Subsidiaries as any Lender, through the Facility Agent,
may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance or
any Discounted Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each of the Borrowers will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties and assets, whether now owned or
hereafter acquired, or assign as security, or permit any of its
Subsidiaries to assign as security, any right to receive income
therefrom, other than:
(i) Permitted Liens;
(ii) Liens existing on the date of this Agreement and
described on Schedule 5.02(a) hereto securing obligations of
any Borrower or any Subsidiary existing on the date of this
Agreement and also described on such Schedule;
(iii) purchase money Liens upon or in one or more
tangible assets acquired or held by any Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such tangible assets or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such tangible
assets so long as such Liens are incurred within 90 days of
the date of acquisition of such tangible assets, or Liens
existing on any such tangible asset at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such tangible assets); provided,
however, that no such Lien shall extend to or cover any
property or assets of any character other than the tangible
assets being acquired, constructed or improved; and provided
further that any
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Indebtedness secured by such Liens shall otherwise be
permitted under the terms of this Agreement;
(iv) Liens on property and assets of a Person
existing at the time such Person is merged into or
consolidated with any Borrower or any of its Subsidiaries or
becomes a Subsidiary of any Borrower; provided that any such
Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to or cover (A)
any property or assets other than the property and assets of
the Person being merged into or consolidated with such
Borrower or such Subsidiary or being acquired by such Borrower
or such Subsidiary, as the case may be, or (B) any obligations
of any Person other than those obligations that were secured
by such property and assets at the time of such merger,
consolidation or acquisition; and provided further that any
Indebtedness secured by such Liens shall otherwise be
permitted under the terms of this Agreement;
(v) Liens on any property or assets of any
Subsidiary of the Company securing Indebtedness owed to the
Company or any of its other Subsidiaries;
(vi) Liens securing reimbursement obligations under
commercial letters of credit incurred in the ordinary course
of business; provided that any such Liens shall cover only the
goods, or documents of title evidencing goods, that are
purchased in the transaction for which such letter of credit
was issued and the products and proceeds thereof;
(vii) Liens arising out of judgments or awards that
do not constitute an Event of Default under Section 6.01(f) or
6.01(g) and in respect of which any Borrower or any of its
Subsidiaries subject thereto shall be prosecuting an appeal or
proceedings for review in good faith and, pending such appeal
or proceedings, shall have secured a subsisting stay of
execution within 30 days of such judgment or award and shall
be maintaining appropriate reserves, in accordance with
generally accepted accounting principles in effect from time
to time, with respect to any such judgment or award;
(viii) Liens on cash, certificates of deposit or
other similar bank obligations securing Indebtedness (which
Indebtedness may be in a different currency from such cash,
certificates of deposit or other bank obligations) in an
amount substantially equal in value (determined at the time
such Lien is created) to such cash, certificates of deposit or
other bank obligations, as the case may be;
(ix) Environmental Liens securing damages and
liabilities not to exceed an aggregate amount of $40,000,000
(or the Equivalent thereof in one or more other currencies)
for the Company and its Subsidiaries at any time;
(x) Liens not otherwise permitted under this Section
5.02(a) securing obligations in an aggregate amount not to
exceed $150,000,000 (or the Equivalent thereof in one or more
other currencies) for the Company and its Subsidiaries at any
time; and
(xi) the extension, renewal, replacement or
refinancing of any Lien otherwise permitted under any of
clauses (ii) through (iv) of this Section 5.02(a) upon or in
the
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same property and assets theretofore subject thereto; provided
that no such extension, renewal, replacement or refinancing
shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed, replaced or refinanced;
and provided further that (A) any obligation secured by such
Liens shall otherwise be permitted under the terms of this
Agreement and (B) both immediately before and immediately
after giving effect to such Lien, no Default shall have
occurred and be continuing.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its property and assets (whether now owned or hereafter acquired) to,
any Person, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of the Company that is not a
Borrower may merge into or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to, any other
Person so long as, if such Person is a Borrower, such Person
is the surviving entity; and
(ii) any Borrower may merge with any other Person
(including, without limitation, any other Borrower or any of
its Subsidiaries) so long as (A) if the Company is a party to
such merger or consolidation, the Company is the surviving
entity or (B) if any other Borrower is a party to such merger
or consolidation, either (1) the surviving entity shall be
such Borrower or (2) the surviving entity (w) shall be a
Substantially Owned Subsidiary of the Company, (x) shall
succeed, by an agreement or operation of law, to all of the
businesses and operations of such Borrower and shall assume,
in an assumption agreement in form and substance satisfactory
to the Facility Agent, all of the rights and obligations of
such Borrower under this Agreement and the Notes, (y) shall
deliver to the Facility Agent all of the certificates,
opinions and other documents described in clauses (b) through
(h) of Section 3.02 with respect to such surviving entity, in
each case in form and substance satisfactory to the Facility
Agent, and such other documents, opinions and other
information as any Lender, through the Facility Agent, may
reasonably request and (z) shall cause the Company to deliver
to the Facility Agent written confirmation of its obligations
under Section 7.01 with respect to such surviving entity;
provided, in each of the foregoing cases, that no Default shall have
occurred and be continuing at the time of such merger, consolidation,
conveyance, transfer, lease or disposition, or shall occur as a result
thereof. Notwithstanding any of the foregoing provisions of this
Section 5.02(b), neither any Borrower nor any of its Subsidiaries shall
sell, convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions and whether through the
disposition of shares of capital stock or other property or assets) (A)
a Substantial Portion of the consumer and home improvement products
segment of the Company and its Subsidiaries (the parameters of such
segment being the same as those used for purposes of the Annual Report
of the Company for the fiscal year of the Company ended December 31,
1995, as filed with the Securities and Exchange Commission on Form
10-K) or (B) all or substantially all of the power tool business
engaged in by the Company and its Subsidiaries on the date of this
Agreement.
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(c) Change in Nature of Business. Engage in any business other
than the businesses engaged in by the Company and its Subsidiaries on
the date of this Agreement and other businesses and activities that are
substantially similar, related or incidental thereto.
(d) Fiscal Year. Make or permit any change in the fiscal
year of the Company.
(e) Substance Storage and Disposal. Permit any Hazardous
Materials to be generated, used, treated, handled or stored at, or
transported to or from, any property owned or operated by any Borrower
or any of its Subsidiaries in any manner that could result in the
incurrence by any Borrower or any of its Subsidiaries of remedial
obligations or liabilities under any applicable Environmental Law,
except (a) as set forth on Schedule 4.01 hereto and (b) substances (i)
to be used in the business of such Borrower or such Subsidiary pending
and during such use and (ii) that are generated or used in the business
of such Borrower or such Subsidiary pending their disposal.
SECTION 5.03. Financial Covenants. So long as any Advance or
any Discounted Note shall remain unpaid or any Lender shall have any Commitment
hereunder, the Company will:
(a) Leverage Ratio. Maintain a Leverage Ratio as of the last
day of each of its fiscal quarters of not greater than 2.00 to 1.
(b) Cash Flow Coverage Ratio. Maintain a Cash Flow Coverage
Ratio as of the last day of each of its fiscal quarters of not less
than 2.50 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail (i) to pay any principal of any
Advance, or any portion of the Face Amount of any Discounted Note, when
the same becomes due and payable or (ii) to pay any interest on any
Advance or to make any payment of fees or other amounts payable under
this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein
or by any Borrower (or any of its officers) in connection with this
Agreement (including, without limitation, in the Designation Letter of
any Borrower) shall prove to have been incorrect or misleading in any
material respect when made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(a), (d), (h), (i)
or (j)(v), or 5.02(a), (b) or (d), or 5.03 to be performed or observed
by such Borrower or (ii) any other term, covenant or agreement
contained in this Agreement to be performed or observed by such
Borrower if such failure shall
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remain unremedied for 30 days after the earlier of (A) the first date
on which a Responsible Officer of any Borrower knows or has reason to
know of such failure and (B) the date on which written notice thereof
shall have been given to the Company or the applicable Borrower by the
Facility Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay
any principal of or any premium or interest on any Indebtedness that is
outstanding in a principal amount of or, in the case of any Hedge
Agreement, having an Agreement Value of, at least $20,000,000 (or the
Equivalent thereof in one or more other currencies), either
individually or in the aggregate (but excluding Indebtedness
outstanding hereunder), of such Borrower or such Subsidiary, as the
case may be, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; provided, however, that
the required redemption or repurchase of any such Indebtedness
comprised of Mandatorily Redeemable Stock of BFS shall not constitute
an Event of Default under this Section 6.01(d) if, and for so long as,
the recourse of the holders of such Mandatorily Redeemable Stock is
limited solely to the property and assets of BFS; or
(e) Any Borrower or any Significant Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Borrower or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property and assets) shall
occur; or any Borrower or any Significant Subsidiary shall take any
action to authorize any of the actions set forth above in this Section
6.01(e); or
(f) One or more judgments or orders for the payment of money
in excess of $20,000,000 (or the Equivalent thereof in one or more
other currencies) shall be rendered against one or more of the
Borrowers and their Subsidiaries and shall remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement
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of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) One or more nonmonetary judgments or orders shall be
rendered against one or more of the Borrowers and their Subsidiaries
and shall remain unsatisfied that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 30 consecutive days during
which a stay of enforcement of any such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) Any material provision of this Agreement or any Note after
delivery thereof pursuant to Article III shall for any reason cease to
be valid and binding on or enforceable against any Borrower intended to
be a party thereto, or any Borrower or any of its Subsidiaries or other
Affiliates shall so state in writing; or
(i) (i) Any ERISA Event with respect to a Plan shall have
occurred and be continuing and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such Plan and
the Insufficiency of any and all other Plans with respect to which an
ERISA Event shall have occurred and be continuing (or the liability of
the Borrowers and the ERISA Affiliates related to such ERISA Events)
exceeds $20,000,000 (or the Equivalent thereof in one or more other
currencies); or
(ii) Any Borrower or any ERISA Affiliate (A) shall engage in
any transaction involving any Plan or any Multiemployer Plan that is
prohibited under Section 4975 of the Internal Revenue Code or Section
406 of ERISA and not exempt under Section 4975 of the Internal Revenue
Code or Section 408 of ERISA or other applicable law or (B) shall fail
to pay when due an amount that is payable by it to the PBGC or to any
Plan or any Multiemployer Plan under Title IV of ERISA, unless the
liability of such Person or Persons with respect to subclauses (ii)(A)
and (ii)(B) of this Section 6.01(i) does not exceed $20,000,000 (or the
Equivalent thereof in one or more other currencies) in the aggregate;
or
(iii) (A) Any Borrower or any ERISA Affiliate shall be in
default, as defined in Section 4219(c)(5) of ERISA, with respect to any
payment of Withdrawal Liability or (B) a proceeding shall be instituted
by a fiduciary of a Multiemployer Plan against any Borrower or any
ERISA Affiliate to enforce Section 515 of ERISA and such proceeding
shall not have been stayed or dismissed within 60 days thereafter,
unless the liability of such Person or Persons with respect to
subclauses (iii)(A) and (iii)(B) of this Section 6.01(i) does not
exceed $20,000,000 (or the Equivalent thereof in one or more other
currencies) in the aggregate; or
(j) Any Borrower (other than the Company) shall cease to be a
Substantially Owned Subsidiary; or
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(k) A Change of Control shall occur;
then, and in any such event, the Facility Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to the Borrowers, declare
the obligation of each Lender to make Advances and to purchase Discounted Notes
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrowers, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by each of the Borrowers; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the U.S. Federal Bankruptcy Code or any
similar bankruptcy or insolvency law of any other jurisdiction, (A) the
obligation of each Lender to make Advances and to purchase Discounted Notes
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each of the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to induce each Lender
to make Advances from time to time to, and to purchase Discounted Notes from
time to time from, the Borrowers and to induce the Facility Agent to act in such
capacity hereunder, the Company hereby unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all obligations of each of the other Borrowers now
or hereafter existing under this Agreement and the Notes of such other
Borrowers, whether for principal, Face Amount, interest, fees, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Facility Agent or any Lender in enforcing
its rights under this Article VII. Without limiting the generality of the
foregoing, the Company's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Borrower to
the Facility Agent or any Lender under this Agreement or any Note of such other
Borrower but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Borrower.
SECTION 7.02. Guarantee Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Facility Agent or any Lender with respect thereto. The
obligations of the Company under this Article VII are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any other Borrower or whether any other
Borrower is joined in any such action or actions. The liability of the Company
under this Article VII shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
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(a) any lack of validity or enforceability of this Agreement
or any Note, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of any other Borrower under this Agreement or any
Note, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note (including, without limitation, any
increase in the Guaranteed Obligations resulting from extensions of
additional credit to any other Borrower or otherwise);
(c) any taking, exchange, release or nonperfection of any
collateral or any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the structure
or existence of any other Borrower or any of its Subsidiaries;
(e) any failure of the Facility Agent or any Lender to
disclose to the Company any information relating to the financial
condition, operations, properties or prospects of any other Borrower
now or hereafter known by the Facility Agent or such Lender, as the
case may be; or
(f) any other circumstance (including, without limitation, any
statute of limitations to the fullest extent permitted by applicable
law or any existence of or reliance on any representation by the
Facility Agent or any Lender) that might otherwise constitute a defense
available to, or a discharge of, the Company, any other Borrower or any
other guarantor or surety.
The guarantee of the Company set forth in this Article VII shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Facility Agent or any of the Lenders upon the insolvency, bankruptcy or
reorganization of any other Borrower or otherwise, all as though such payment
had not been made.
SECTION 7.03. Waivers. (a) The Company hereby unconditionally
and irrevocably waives promptness, diligence, presentment, demand for payment,
protest, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and the guarantee of the Company set forth in this
Article VII, and any requirement that any right or power be exhausted or any
action be taken against any other Borrower or against any other guarantor of all
or any portion of the Advances or the Discounted Notes.
(b) The Company hereby unconditionally and irrevocably waives
any right to revoke its guarantee set forth in this Article VII, and
acknowledges that such guarantee is continuing in nature and applies to all of
the Guaranteed Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives
any duty on the part of the Facility Agent or any Lender to disclose to the
Company any matter, fact or thing relating to the business, properties,
operation or condition of any other Borrower or any of its Subsidiaries now or
hereafter known by the Facility Agent or such Lender, as the case may be.
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(d) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated under
this Agreement and the Notes and that the waivers set forth in this Section 7.03
are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Borrower or any other insider guarantor that
arise from the existence, payment, performance or enforcement of the obligations
of the Company under this Article VII or otherwise under this Agreement and its
Notes, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Facility Agent or any Lender against another Borrower or
any other insider guarantor or any collateral, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from another Borrower or any
other insider guarantor, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Article VII shall have been paid in full in
cash and all of the Commitments shall have expired or terminated. If any amount
shall be paid to the Company in violation of the immediately preceding sentence
at any time prior to the later of (a) the payment in full in cash of all of the
Guaranteed Obligations and all of the other amounts payable under this Article
VII and (b) the Termination Date, such amount shall be held in trust for the
benefit of the Facility Agent and the Lenders and shall forthwith be paid to the
Facility Agent to be credited and applied to the Guaranteed Obligations and all
other amounts payable under this Article VII, whether matured or unmatured, in
accordance with the terms of this Agreement, or to be held as collateral for any
Guaranteed Obligations or any other amounts payable under this Article VII
thereafter arising. If (i) the Company shall make payment to the Facility Agent
or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all of the other amounts payable under this Article
VII shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Facility Agent and the Lenders will, at the Company's request and
expense, execute and deliver to the Company appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Company of an interest in the Guaranteed
Obligations resulting from such payment by the Company.
SECTION 7.05. Continuing Guarantee; Assignments. The guarantee
of the Company set forth in Section 7.01 is a continuing guarantee and shall (a)
remain in full force and effect until the later of (i) the payment in full in
cash of all of the Guaranteed Obligations and all other amounts payable under
this Article VII and (ii) the Termination Date, (b) be binding upon the Company,
its successors and assigns, (c) inure to the benefit of and be enforceable by
each Lender and the Facility Agent and their respective successors, transferees
and assigns and (d) be reinstated if at any time any payment to a Lender or the
Facility Agent hereunder is required to be returned by such Lender or the
Facility Agent, as the case may be. Without limiting the generality of clause
(c) of the immediately preceding sentence, each Lender may assign or otherwise
transfer all or a portion of its rights and obligations under this Agreement
(including, without limitation, the Advances owing to it, the Discounted Notes
purchased by it and any other Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all of the benefits in respect
thereof granted to such Lender under this Article VII or otherwise, in each case
as provided in Section 9.07.
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ARTICLE VIII
THE FACILITY AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Facility Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Facility Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Facility Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Facility Agent shall not be required to take any
action that exposes the Facility Agent to personal liability or that is contrary
to this Agreement or to applicable law. The Facility Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
(b) Each Lender hereby also appoints and authorizes Citibank
to act as the US Sub-Agent hereunder and to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the US Sub-Agent under Section 2.02 or as are otherwise from time
to time delegated thereto by the Facility Agent, together with such powers and
discretions as are reasonably incidental thereto. In such capacity, the US
Sub-Agent shall be entitled to the benefits of all of the provisions of this
Article VIII (including, without limitation, Section 8.05) as if such provisions
were set forth in full herein with respect thereto.
(c) Neither Co-Arranger shall have any powers or discretion
under this Agreement or any Note other than those afforded to it in its capacity
as a Lender, and each Lender hereby acknowledges that the Co-Arrangers have no
liabilities under this Agreement or any Note other than those assumed by them in
their respective capacities as Lenders.
SECTION 8.02. Facility Agent's Reliance, Etc. Neither the
Facility Agent nor any of its officers, directors, employees, agents or advisors
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Facility Agent:
(i) may treat the payee of any Note as the holder thereof
until the Facility Agent receives and accepts an Assignment and
Acceptance or an Assumption Agreement, as the case may be, entered into
by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07 or 2.17,
respectively;
(ii) may consult with legal counsel (including counsel for the
Company), independent certified public accountants and other experts
selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts;
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(iii) makes no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection
with this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or
conditions of this Agreement or any Note on the part of any Borrower or
to inspect the property (including the books and records) of any
Borrower;
(v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 8.03. Facility Agent and Affiliates. With respect to
its Commitment, the Advances made by it, the Discounted Notes purchased by it
and any other Note or Notes issued to it, Citibank International (or any
successor Facility Agent appointed pursuant to Section 8.06) shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Facility Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank
International (or any such successor) in its individual capacity. Citibank
International (or any such successor) and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from, and generally engage in any kind of business with, any
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of any Borrower or any such Subsidiary, all as if Citibank
International (or any such successor) were not the Facility Agent and without
any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Facility Agent, any
Co-Arranger or any other Lender and based on the financial statements referred
to in Section 4.01(e) and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Facility Agent, any Co-Arranger or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Facility Agent (to the extent required to be paid and not reimbursed by the
Borrowers), according to their respective Pro Rata Shares of principal amounts
of the Revolving Credit Notes held by each of them (or if no Revolving Credit
Notes are outstanding at such date or if any Revolving Credit Notes or any
Discounted Notes are held by Persons that are not Lenders at such date,
according to their respective Pro Rata Shares of the aggregate Commitments at
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Facility Agent in any way relating to or arising out of this
Agreement or any Note or any action taken or omitted by the Facility
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Agent under this Agreement or any Note; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Facility Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Facility Agent promptly upon
demand for its Pro Rata Share of any out-of-pocket costs and expenses (including
reasonable counsel fees and expenses) incurred by the Facility Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any Note to the extent that the
Facility Agent is not reimbursed for such expenses by the Borrowers.
SECTION 8.06. Successor Facility Agent. The Facility Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Facility Agent; provided that, so long as no
Default shall have occurred and be continuing, the Company shall have the right
to propose a successor Facility Agent to the Lenders and shall have the right to
consent to any such successor Facility Agent, such consent not to be
unreasonably withheld and to be deemed to have been given if the Company does
not object to the proposed successor Facility Agent within five Business Days
after notice thereof. If no successor Facility Agent shall have been so
appointed by the Required Lenders (and, if so required under the immediately
preceding sentence, consented to by the Company), and shall have accepted such
appointment, within 30 days after the retiring Facility Agent's giving of notice
of resignation or the Required Lenders' removal of the retiring Facility Agent,
then the retiring Facility Agent may, on behalf of the Lenders, appoint a
successor Facility Agent, which shall be a commercial bank organized under the
laws of Great Britain or the United States of America or of any state thereof
and having a combined capital and surplus of at least $100,000,000 (or the
Equivalent thereof in Sterling). Upon the acceptance of any appointment as
Facility Agent hereunder by a successor Facility Agent, such successor Facility
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Facility Agent, and the
retiring Facility Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Facility Agent's resignation or removal
hereunder as Facility Agent, the provisions of this Article VIII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Facility Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Revolving Credit Notes, the Master Discounted
Note or the Discounted Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or
3.02 or, with respect to all Consenting Lenders and all Assuming
Lenders, Section 3.05;
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(b) increase the aggregate Commitments of the Lenders or
subject the Lenders to any additional obligations;
(c) reduce the principal of, or interest on, the Revolving
Credit Advances, or the Face Amount of, or Discount on, the Discounted
Notes, or any fees (other than any fees referred to in Section 2.04(b))
or other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of,
or interest on, the Revolving Credit Advances, or Face Amount of, or
Discount on, the Discounted Notes, or any fees (other than any fees
referred to in Section 2.04(b)) or other amounts payable hereunder,
except pursuant to Section 2.17 as in effect on the date of this
Agreement;
(e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances and
the aggregate unpaid Face Amount of the Discounted Notes, or the number
of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder;
(f) release or limit the obligations of the Company under any
provision of Article VII; or
(g) amend this Section 9.01;
and provided further, however, that no amendment, waiver or consent shall,
unless in writing and signed by the Facility Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Facility
Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder, unless otherwise expressly stated herein,
shall be in writing (including telecopier, telegraphic or telex communication)
and mailed, telecopied, telegraphed, telexed or delivered, if to any Initial
Borrower, at its address set forth below its name on the signature pages hereof;
if to any Designated Subsidiary that becomes a Borrower hereunder, at its
address set forth below its name on the signature page to its Designation
Letter; if to any Initial Lender, at its Base Rate Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Base Rate
Lending Office specified in the Assignment and Acceptance or the Assumption
Agreement, as the case may be, pursuant to which it became a Lender; if to the
Facility Agent, at its address at 11 Old Jewry, London, England EC2R 8DB
(Telecopier No. 171 500 4482), Attention: Loans Agency Department; and if to the
US Sub-Agent, at its address at One Court Square, 7th Floor, Long Island City,
New York 11120 (Telecopier No. (718) 248-4844), Attention: Mr. Phillip Green,
Bank Loan Syndication Department; or, as to any Borrower or the Facility Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Company and the Facility
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Facility Agent or
the US Sub-Agent pursuant to Article II, III or VIII shall not be effective
until received by the Facility Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or any
of the Notes or of any Exhibit
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hereto to be executed and delivered hereunder shall be effective as delivery of
a manually executed counterpart thereof.
(b) If any notice required under this Agreement is permitted
to be made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Facility Agent, the US Sub-Agent or any Lender shall be
binding upon the Borrower delivering such notice notwithstanding any
inconsistency between the notice provided by telephone and any subsequent
writing in confirmation thereof provided to the Facility Agent, the US Sub-Agent
or such Lender; provided that any such action taken or omitted to be taken by
the Facility Agent, the US Sub-Agent or such Lender shall have been in good
faith and in accordance with the terms of this Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.09 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Initial Borrower (other
than the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B) in
the case of clause (ii) of the immediately preceding sentence, the delivery of
any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Facility Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by applicable law.
SECTION 9.04. Costs and Expenses. (a) Each of the Borrowers
jointly and severally agrees to pay, or to reimburse the Facility Agent from
time to time upon demand for, all reasonable costs and expenses of the Facility
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all syndication
(including printing and distribution) costs and expenses and, with the approval
of the Company, consultant costs and expenses and (B) the reasonable fees and
expenses of counsel for the Facility Agent with respect thereto and with respect
to advising the Facility Agent as to its rights and responsibilities under this
Agreement, the Notes and the other documents to be delivered hereunder. Each of
the Borrowers jointly and severally further agrees to pay, or to reimburse the
Facility Agent, the US Sub-Agent and the Lenders from time to time upon demand
for, all reasonable costs and expenses of the Facility Agent, the US Sub-Agent
and the Lenders, if any (including, without limitation, reasonable counsel fees
and expenses, but without duplication for any costs and expenses for which the
Borrowers are otherwise obligated to indemnify the Facility Agent, the US
Sub-Agent and the Lenders under Section 9.04(b)), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other
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documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Facility Agent, the US Sub-Agent and each
Lender.
(b) Each of the Borrowers jointly and severally agrees to
indemnify and hold harmless the Facility Agent, the US Sub-Agent, each
Co-Arranger and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against, and to reimburse each Indemnified Party from time to time upon
demand for, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or the Discounted Notes or (ii) the actual or alleged
presence of Hazardous Materials on any property of any Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to any Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or any Indemnified Party or any other Person or an Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except (A) to the extent such claim,
damage, loss, liability or expense is found by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct or (B) those resulting solely from claims of a Lender solely against
one or more other Lenders (and not from claims of one or more Lenders against
the Facility Agent, the US Sub-Agent or any Co-Arranger) not attributable to the
actions of any Borrower or any of its Subsidiaries or other Affiliates and for
which none of the Borrowers, any of their Subsidiaries or any of their other
Affiliates otherwise has liability. Each Borrower also agrees not to assert any
claim against the Facility Agent, the US Sub-Agent, any Co-Arranger, any Lender
or any of their Affiliates, or any of their respective officers, directors,
employees, attorneys, agents and advisors, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to this Agreement, any Note, any of the transactions contemplated
hereby or the actual or proposed use of the proceeds of the Advances or the
Discounted Notes. No Indemnified Party shall settle or otherwise pay or agree to
pay any claim for which the Borrowers are obligated to provide indemnification
under this Section 9.04(b) without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or any LIBO Rate Advance, or any repurchase of any
Discounted Note, is made by any Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance or the Maturity
Date of such Discounted Note, as the case may be, as a result of a payment or
Conversion pursuant to Section 2.09, 2.10 or 2.12, acceleration of the maturity
of the Notes pursuant to Section 6.01 or by an Eligible Assignee to any Lender
other than on the last day of the Interest Period or on the Maturity Date
therefor, as the case may be, upon an assignment of the rights and obligations
of such Lender under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a), or for any other reason, the
Borrowers jointly and severally agree to pay, upon demand by such Lender (with a
copy of such demand to the Facility Agent), to the Facility Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
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liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Advance or such Discounted Note.
(d) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of
principal, Face Amount, interest and all other amounts payable hereunder and
under the Notes.
SECTION 9.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Facility Agent to declare the Notes due and payable pursuant to the provisions
of Section 6.01, each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and any and all other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement and the Note or
Notes held by such Lender, whether or not such Lender shall have made any demand
under this Agreement or any such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify each Borrower after any such
setoff and application; provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
and its Affiliates under this Section 9.05 are in addition to any other rights
and remedies (including, without limitation, other rights of setoff) that such
Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Initial Borrower and the Facility Agent and
when the Facility Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and, thereafter, shall be binding upon and
inure to the benefit of each Borrower, the Facility Agent, the US Sub-Agent,
each Co-Arranger and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may, and, if demanded by the Company (following (i) a demand by such Lender for
the payment of, or the incurrence by a Borrower of any obligations to pay,
additional compensation pursuant to Section 2.07(c), 2.11 or 2.14 or (ii) an
assertion by such Lender pursuant to Section 2.12 that it is impracticable or
unlawful for such Lender to make Eurocurrency Rate Advances or to purchase
Discounted Notes), upon at least 30 Business Days' notice to such Lender and the
Facility Agent, each Lender will, assign to one or more Persons all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it, the Discounted Notes purchased by it and the Revolving Credit Note
or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, any Competitive
Bid Advances owing to it and any Competitive Bid Notes held by it);
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(B) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall be
$20,000,000 or an integral multiple of $1,000,000 in excess thereof;
(C) each such assignment shall be to an Eligible Assignee;
(D) each such assignment made as a result of a demand by the
Company pursuant to this Section 9.07(a) shall be arranged by the
Company with the approval of the Facility Agent, which approval shall
not be unreasonably withheld or delayed, and shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other
such assignments that, in the aggregate, cover all of the rights and
obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to make any assignment as a
result of a demand by the Company pursuant to this Section 9.07(a)
unless and until such Lender shall have received one or more payments
from (1) one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of all Advances
owing to, and the aggregate Accreted Value to the date of such
assignment of all outstanding Discounted Notes purchased by, such
Lender, together with accrued interest on such Advances to the date of
payment of such principal amount, and (2) the Company and/or one or
more Eligible Assignees in an aggregate amount equal to all other
amounts payable to such Lender under this Agreement and the Notes
(including, without limitation, any amounts owing under Sections
2.07(c), 2.11 and 2.14); and
(F) the parties to each such assignment shall execute and
deliver to the Facility Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving
Credit Note subject to such assignment, and each Eligible Assignee
party to such assignment shall pay a processing and recordation fee of
$3,500;
provided further, however, that no Person to which an assignment is being made
in accordance with this Section 9.07(a) shall be entitled to any additional
compensation under Sections 2.11, 2.12 and 2.14 in excess of the aggregate
amounts payable under such Sections to the Lender making such assignment prior
to the effective date of such Assignment and Acceptance, unless such additional
compensation is payable to such Person as a result of the adoption or enactment
of, or changes in or in the applicability, the interpretation or the
implementation of, any law, rule, regulation, directive, guideline or request
after such effective date. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (1) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (2) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
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(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any
of its obligations under this Agreement or any Note, or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01(e) 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;
(iv) such assignee will, independently and without reliance
upon the Facility Agent, the US Sub-Agent, any Co-Arranger, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Facility Agent
and the US Sub-Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are
delegated to the Facility Agent or the US Sub-Agent, respectively, by
the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Facility Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company. Within ten
Business Days after receipt of such notice by the Company, each Borrower shall,
at its own expense, execute and deliver to the Facility Agent in exchange for
the surrendered Revolving Credit Note a new Revolving Credit Note from such
Borrower to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Revolving Credit
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an
aggregate principal amount equal
SS_NYL3/160823 9
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77
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto. Upon the
Facility Agent's receipt of notice from the assigning Lender that such assigning
Lender is satisfied with the form and substance of such new Revolving Credit
Notes, the Facility Agent shall, at the expense of the Borrowers, cancel the
surrendered Revolving Credit Notes of such assigning Lender and deliver to the
Company such cancelled Revolving Credit Notes.
(d) The Facility Agent shall maintain at its address referred
to in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and the principal amount of the Advances
owing to, and the Face Amount of the Discounted Notes purchased by, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Facility Agent, the US Sub-Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
any Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than any Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it, the Discounted Notes purchased by it and the other Note or Notes held by
it); provided, however, that:
(i) such Lender's obligations under this Agreement (including
without limitation, its Commitment hereunder) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Notes
for all purposes of this Agreement;
(iv) the Borrowers, the Facility Agent, the US Sub-Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement; and
(v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Advances, the Face
Amount of, or Discount on, the Discounted Notes, or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal
of, or interest on, the Advances, any Face Amount of the Discounted
Notes, or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, except pursuant to Section
2.17;
SS_NYL3/160823 9
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78
and provided further that the Borrowers shall not be required to pay any
additional amounts under this Agreement to compensate a participant (or such
Lender, on behalf of a participant) in respect of the rights and obligations of
such participant relating to this Agreement in excess of what the Borrowers
would otherwise be required to pay to such Lender if the participation had not
been sold.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower or any of its Subsidiaries
furnished to such Lender by or on behalf of any Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender in accordance with the terms of
Section 9.09.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it, the Discounted Notes purchased by it and the other Note or
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may, at any time and from time to time by delivery to the Facility Agent
of a Designation Letter, duly executed by the Company and a Substantially Owned
Subsidiary and in substantially the form of Exhibit F hereto, designate such
Subsidiary as a "Designated Subsidiary" for all purposes of this Agreement, and,
upon fulfillment of the applicable conditions set forth in Article III and after
such Designation Letter is accepted by the Facility Agent, such Subsidiary shall
thereupon become a Designated Subsidiary for all purposes of this Agreement and,
as such, shall have all of the rights and obligations of a Borrower hereunder.
The Facility Agent shall promptly notify each Lender of each such designation by
the Company and the identity of each such Designated Subsidiary.
(b) Termination. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations of any Designated
Subsidiary or any Initial Borrower (other than the Company) under this Agreement
and the Notes issued by it, then, so long as at such time such Designated
Subsidiary or such Initial Borrower, as the case may be, has not submitted a
Notice of Revolving Credit Borrowing or a Notice of Competitive Bid Borrowing,
such Designated Subsidiary's or such Initial Borrower's status as a Borrower
and, if applicable, as a Designated Subsidiary shall terminate upon notice to
such effect from the Facility Agent to the Lenders (which notice the Facility
Agent shall promptly deliver to the Lenders following its receipt of such a
request from the Company). Thereafter, the Lenders shall be under no further
obligation to make any Advances to, or to purchase any Discounted Notes from,
such Designated Subsidiary or such Initial Borrower, as the case may be.
SECTION 9.09. Confidentiality. Neither the Facility Agent nor
any Lender shall disclose any Confidential Information to any Person, without
the prior written consent of the Company, other than (a) to the Facility
Agent's, the US Sub-Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and, in each such
case, then only on a confidential basis, (b) as required by any law, rule or
regulation or by judicial process, (c) to any rating agency when required by it
to do so; provided that, prior to any such disclosure, such rating agency shall
undertake to preserve
SS_NYL3/160823 9
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79
the confidentiality of any Confidential Information relating to any Borrower
received by it from such Lender, (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking, (e) to
protect, preserve, exercise or enforce the Facility Agent's, the US Sub-Agent's
or such Lender's rights under or pursuant to this Agreement or any Note and (f)
to perform any of the Facility Agent's, the US Sub-Agent's or such Lender's
obligations under or pursuant to this Agreement or any Note.
SECTION 9.10. Governing Law. This Agreement and each of the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Judgment. (a) Rate of Exchange. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
hereunder (including, without limitation, under Section 7.01) or under any Note
or Notes in another currency into US Dollars or Sterling, as the case may be,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which, in accordance with normal
banking procedures, a Lender could purchase such other currency with US Dollars
or with Sterling, as the case may be, in New York City, New York at the close of
business on the Business Day immediately preceding the day on which final
judgment is given, together with any premiums and costs of exchange payable in
connection with such purchase.
(b) Indemnity. The obligation of each Borrower in respect of
any sum due from it to the Facility Agent or any Lender hereunder or under any
Note or Notes shall, notwithstanding any judgment in a currency other than US
Dollars or Sterling, as the case may be, be discharged only to the extent that
on the Business Day next succeeding receipt by such Facility Agent or such
Lender of any sum adjudged to be so due in such other currency, the Facility
Agent or such Lender may, in accordance with normal banking procedures, purchase
US Dollars or Sterling, as the case may be, with such other currency. If the US
Dollars or the Sterling so purchased are less than the sum originally due to the
Facility Agent or such Lender in US Dollars or in Sterling, each Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Facility Agent or such Lender against such loss, and if the US
Dollars or Sterling so purchased exceed the sum originally due to either the
Facility Agent or any Lender in US Dollars or in Sterling, as the case may be,
the Facility Agent or such Lender agrees to remit to such Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York state court or
federal court of the United States of America sitting in New York City, New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by applicable law, in such federal court. Each Borrower
hereby further irrevocably consents to the service of process in
SS_NYL3/160823 9
<PAGE>
80
any action or proceeding in such courts by the mailing thereof by any parties
hereto by registered or certified mail, postage prepaid, to such Borrower at its
address specified pursuant to Section 9.02. Each Initial Borrower (other than
the Company) and each Designated Subsidiary hereby further agrees that service
of process in any such action or proceeding brought in any such New York state
court or in any such federal court may be made upon the Company at its address
referred to in Section 9.02, and each Initial Borrower (other than the Company)
and each Designated Subsidiary hereby irrevocably appoints the Company as its
authorized agent to accept such service of process, and hereby irrevocably
agrees that the failure of the Company to give any notice of any such service to
such Initial Borrower or such Designated Subsidiary, as the case may be, shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable law. Nothing in this Agreement shall affect any right
that any party may otherwise have to serve legal process in any other manner
permitted by applicable law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York state or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
SS_NYL3/160823 9
<PAGE>
81
(c) To the extent that any Borrower has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, such Borrower hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and the Notes.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the
Facility Agent, the US Sub-Agent and the Lenders hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of the Facility Agent, the US Sub-Agent or any Lender
in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE BORROWERS
THE BLACK & DECKER CORPORATION
With a copy to: By:/S/ KATHLEEN W. HYLE
Name: Kathleen W. Hyle
701 East Joppa Road Title: Treasurer
Towson, Maryland 21286 Address: 701 East Joppa Road
Attention: General Counsel Towson, Maryland 21286
Telephone: (410) 716-3918 Telephone: (410) 716-3042
Telecopier: (410) 716-2660 Telecopier: (410) 716-3778
BLACK & DECKER HOLDINGS INC.
By:/S/ CHRIS POWELL-SMITH
Name: Chris Powell-Smith
Title:
Address: 160, Aldersgate Street, London
BLACK & DECKER
By: /S/ W. IAN FREEMAN
Name: W. Ian Freeman
Title: Director
Address: 210 Bath Road
Slough, Berkshire
England SL1 3YD
SS_NYL3/160823 9
<PAGE>
82
THE AGENTS
CITIBANK INTERNATIONAL plc,
as Facility Agent
By: /S/ MICHAEL POTTER
Name: Michael Potter
Title: Vice President
CITIBANK INTERNATIONAL plc,
as Co-Arranger
By: /S/ MICHAEL POTTER
Name: Michael Potter
Title: Vice President
MIDLAND BANK plc,
as Co-Arranger
By: /S/ R.A. PUDNER
Name: R.A. Pudner
Title: Deputy Head, Mitt, Corporate Banking
THE INITIAL LENDERS
Commitment
$37,500,000 CITIBANK INTERNATIONAL plc
By: /S/ WILLIAM W. CONKLIN
Name: William W. Conklin
Title: Vice President
SS_NYL3/160823 9
<PAGE>
83
$37,500,000 CREDIT SUISSE
By: /S/ RICHARD SMITH-MORGAN
Name: Richard Smith-Morgan
Title: Senior Relationship Manager
By: /S/ BRONWEN SCOTT
Name: Bronwen Scott
Title: Relationship Manager
$37,500,000 MIDLAND BANK plc
By: /S/ R.A. PUDNER
Name: R.A. Pudner
Title: Deputy Head, Mitt, Corporate Banking
$37,500,000 NATIONSBANK, N.A.
By: /S/CATHY A. WILCOX
Name: Cathy A. Wilcox
Title: Senior Vice President
$30,000,000 BANK OF AMERICA NT&SA
By: /S/ JOHN W. POCALYKO
Title: John W. Pocalyko
Name: Vice President
SS_NYL3/160823 9
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84
$30,000,000 CHEMICAL BANK
By: /S/ CAROL A. ULMER
Name: Carol A. Ulmer
Title: Vice President
$30,000,000 SCOTIABANK (U.K.) LTD.
By: /S/ P.D. GIRLING
Name: P.D. Girling
Title: Relationship Manager
$20,000,000 BANK BRUSSELS LAMBERT, NEW YORK BRANCH
By: /S/ JOHN KIPPAX
Name: John Kippax
Title: Vice President
By: /S/ JEAN-LOUIS RECOUSSINE
Name: Jean-Louis Recoussine
Title: Directeur
$20,000,000 CIBC WOOD GUNDY plc
By: /S/ J.C. HEALY
Name: J.C. Healy
Title: Director, Diversified Industries
$20,000,000 COMMERZBANK AG, LONDON BRANCH
By: /S/ R.S. SULLIVAN
Name: R.S. Sullivan
Title: Sen. Mgr.
By: /S/ C.M.A. GOODWIN
Name: C.M.A. Goodwin
Title: Manager
SS_NYL3/160823 9
<PAGE>
85
$20,000,000 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /S/ ROBERT GRELLA /S/ SUSAN A. HODGE
Name: Robert Grella Susan A. Hodge
Title: Vice President Vice President
$20,000,000 ROYAL BANK OF CANADA
By: /S/ PETER D. STEFFEN
Name: Peter D. Steffen
Title: Senior Manager
$20,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By: /S/ ROBERT H. WOLOHAN
Name: Robert H. Wolohan
Title: Corporate Banking Officer
$20,000,000 THE FUJI BANK, LIMITED
By: /S/ STEPHEN G. ODELL
Name: Stephen G. Odell
Title: Senior Assistant General Manager
$20,000,000 SOCIETE GENERALE
By: /S/ TIMOTHY G. E. PODIE /S/ C. JOLLY
Name: Timothy G. E. Podie C. Jolly
Title: Associate Director Exec. Director
- ----------------
$400,000,000 TOTAL OF COMMITMENTS
SS_NYL3/160823 9
Exhibit 4b
EXECUTION COPY
U.S. $600,000,000
CREDIT AGREEMENT
Dated as of April 23, 1996
Among
THE BLACK & DECKER CORPORATION,
BLACK & DECKER HOLDINGS INC.,
BLACK & DECKER,
BLACK & DECKER INTERNATIONAL HOLDINGS, B.V.,
BLACK & DECKER G.m.b.H.,
BLACK & DECKER (FRANCE) S.A.S.,
BLACK & DECKER (NEDERLAND) B.V.
and
EMHART GLASS S.A.,
as Initial Borrowers,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CREDIT SUISSE,
as Administrative Agent,
and
CITIBANK, N.A.,
as Documentation Agent,
and
NATIONSBANK, N.A.,
as Syndication Agent
162654.6/NYL3
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 1
SECTION 1.02. Computation of Time Periods................................... 23
ARTICLE II
TERMS OF THE ADVANCES AND THE DISCOUNTED NOTES
SECTION 2.01. The Advances.................................................. 23
SECTION 2.02. Making the Revolving Credit Advances and Purchasing the
Discounted Notes.............................................. 24
SECTION 2.03. The Competitive Bid Advances.................................. 26
SECTION 2.04. Fees ........................................................ 30
SECTION 2.05. Termination or Reduction of the Commitments................... 30
SECTION 2.06. Repayment of Advances and Repurchase of Discounted Notes...... 30
SECTION 2.07. Interest on Revolving Credit Advances......................... 31
SECTION 2.08. Interest Rate and Discount Determination...................... 32
SECTION 2.09. Optional Conversion of Revolving Credit Advances.............. 33
SECTION 2.10. Prepayments of Revolving Credit Advances and Repurchases of
Discounted Notes.............................................. 34
SECTION 2.11. Increased Costs............................................... 35
SECTION 2.12. Illegality.................................................... 36
SECTION 2.13. Payments and Computations..................................... 37
SECTION 2.14. Taxes ........................................................ 39
SECTION 2.15. Sharing of Payments, Etc...................................... 42
SECTION 2.16. Defaulting Lenders............................................ 42
SECTION 2.17. Extension of Termination Date................................. 43
SECTION 2.18. Use of Proceeds............................................... 45
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03.......................................................... 45
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary......................................... 48
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing....... 49
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing........ 49
SECTION 3.05. Conditions Precedent to Each Extension Date................... 50
SECTION 3.06. Determinations Under Section 3.01............................. 50
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers............... 51
162654.6/NYL3
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ii
Page
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants......................................... 54
SECTION 5.02. Negative Covenants............................................ 58
SECTION 5.03. Financial Covenants........................................... 60
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................. 61
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee....................................... 63
SECTION 7.02. Guarantee Absolute............................................ 64
SECTION 7.03. Waivers....................................................... 65
SECTION 7.04. Subrogation................................................... 65
SECTION 7.05. Continuing Guarantee; Assignments............................. 66
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action...................................... 66
SECTION 8.02. Administrative Agent's Reliance, Etc.......................... 67
SECTION 8.03. Administrative Agent and Affiliates........................... 67
SECTION 8.04. Lender Credit Decision........................................ 67
SECTION 8.05. Indemnification............................................... 68
SECTION 8.06. Successor Administrative Agent................................ 68
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc............................................... 69
SECTION 9.02. Notices, Etc.................................................. 70
SECTION 9.03. No Waiver; Remedies........................................... 70
SECTION 9.04. Costs and Expenses............................................ 71
SECTION 9.05. Right of Setoff............................................... 72
SECTION 9.06. Binding Effect................................................ 72
SECTION 9.07. Assignments and Participations................................ 73
SECTION 9.08. Designated Subsidiaries....................................... 76
SECTION 9.09. Confidentiality............................................... 77
SECTION 9.10. Governing Law................................................. 77
SECTION 9.11. Execution in Counterparts..................................... 77
SECTION 9.12. Judgment...................................................... 77
SECTION 9.13. Jurisdiction, Etc............................................. 78
SECTION 9.14. Waiver of Jury Trial.......................................... 78
162654.6/NYL3
<PAGE>
iii
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Administrative Agent's Accounts
Schedule III - Borrowers' Accounts
Schedule 4.01 - Environmental Compliance
Schedule 5.02(a) - Existing Liens
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of Master Discounted Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E-1 - Form of Opinion of Counsel for the Borrowers
Exhibit E-2 - Form of Opinion of Special New York Counsel for the
Borrowers
Exhibit E-3 - Form of Opinion of Special Counsel for a Designated
Subsidiary
Exhibit F - Form of Designation Letter
Exhibit G - Form of Acceptance of Process Agent
162654.6/NYL3
<PAGE>
CREDIT AGREEMENT
Dated as of April 23, 1996
THE BLACK & DECKER CORPORATION, a Maryland corporation (the
"Company"), BLACK & DECKER HOLDINGS INC., a Delaware corporation ("Holdings"),
BLACK & DECKER, a corporation organized under the laws of the United Kingdom
("B&D"), BLACK & DECKER INTERNATIONAL HOLDINGS, B.V., a corporation organized
under the laws of The Kingdom of The Netherlands ("Holdings International"),
BLACK & DECKER G.m.b.H., a corporation organized under the laws of the Federal
Republic of Germany ("B&D Germany"), BLACK & DECKER (FRANCE) S.A.S., a
corporation organized under the laws of the Republic of France ("B&D France"),
BLACK & DECKER (NEDERLAND) B.V., a corporation organized under the laws of The
Kingdom of the Netherlands ("B&D Nederland"), and EMHART GLASS S.A., a
corporation organized under the laws of The Swiss Confederation ("Emhart" and,
together with the Company, Holdings, B&D, Holdings International, B&D Germany,
B&D France and B&D Nederland, the "Initial Borrowers"), the banks, financial
institutions and other institutional lenders (collectively, the "Initial
Lenders") listed on the signature pages hereof, CREDIT SUISSE ("Credit Suisse"),
as the administrative agent (together with any successor agent appointed
pursuant to Article VIII, the "Administrative Agent") for the Lenders (as
hereinafter defined), CITIBANK, N.A. ("Citibank"), as documentation agent (the
"Documentation Agent") for the Lenders, and NATIONSBANK, N.A. ("NationsBank"),
as syndication agent (the "Syndication Agent") for the Lenders, agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accreted Value" means, with respect to each Discounted Note
comprising part of the same Revolving Credit Borrowing at any date of
determination, an amount equal to the sum of (a) the Discounted
Purchase Price of such Discounted Note and (b) the portion of the
Discount applicable to such Discounted Note that shall have accreted
from the date of such Revolving Credit Borrowing until such date.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means (a) in the case of
Advances denominated in US Dollars or in any Primary Currency or
Discounted Notes, the account of the Administrative Agent maintained by
the Administrative Agent at the location specified opposite the
currency in which such Advances or Discounted Notes are denominated on
Schedule II hereto and (b) in any such case, such other account of the
Administrative Agent as is designated in writing from time to time by
the Administrative Agent to the Borrowers and the Lenders for such
purpose.
162654.6/NYL3
<PAGE>
2
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement Value" means, with respect to any Hedge Agreement
at any date of determination, the amount, if any, that would be payable
to any bank thereunder in respect of the "agreement value" under such
Hedge Agreement if such Hedge Agreement were terminated on such date,
calculated as provided in the International Swap Dealers Association,
Inc. Code of Standard Wording, Assumptions and Provisions for Swaps,
1986 Edition.
"Alternate Currency" means the lawful currency of any
jurisdiction that is transferrable or convertible into US Dollars other
than US Dollars and any Primary Currency.
"Anniversary Date" means April 23, 1997 and April 23 in each
succeeding calendar year occurring during the term of this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Base Rate Lending Office in the case of a Base
Rate Advance or a Discounted Note and such Lender's Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender or any of
its Affiliates notified by such Lender to the Administrative Agent as
its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, at any time and from time to time,
a percentage per annum equal to the applicable percentage set forth
below for the Performance Level set forth below:
- --------------------------------------------------------------------------------
Performance Eurocurrency
Level Rate Advances
- --------------------------------------------------------------------------------
I 0.150%
- --------------------------------------------------------------------------------
II 0.200%
- --------------------------------------------------------------------------------
III 0.225%
- --------------------------------------------------------------------------------
IV 0.250%
- --------------------------------------------------------------------------------
V 0.375%
- --------------------------------------------------------------------------------
The Applicable Margin for (a) each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and (b) each Discounted Note shall be determined by reference to
the Performance Level in effect two Business Days before the date such
Discounted Note is purchased by a Lender.
162654.6/NYL3
<PAGE>
3
"Applicable Percentage" means, at any time and from time to
time, a percentage per annum equal to the applicable percentage set
forth below for the Performance Level set forth below:
- --------------------------------------------------------------------------------
Performance
Level Facility Fee
- --------------------------------------------------------------------------------
I 0.075%
- --------------------------------------------------------------------------------
II 0.100%
- --------------------------------------------------------------------------------
III 0.125%
- --------------------------------------------------------------------------------
IV 0.125%
- --------------------------------------------------------------------------------
V 0.175%
- --------------------------------------------------------------------------------
The Applicable Percentage for the Facility Fee shall be determined by
reference to the Performance Level in effect from time to time.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Company, in substantially
the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" means an assumption agreement entered
into by a Non-Consenting Lender and an Assuming Lender, and accepted by
the Administrative Agent and the Company, in substantially the form of
Exhibit D hereto, pursuant to which such Assuming Lender agrees to
become a Lender hereunder pursuant to Section 2.17.
"B&D" has the meaning specified in the recital of parties to
this Agreement.
"B&D France" has the meaning specified in the recital of
parties to this Agreement.
"B&D Germany" has the meaning specified in the recital of
parties to this Agreement.
"B&D Nederland" has the meaning specified in the recital of
parties to this Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by Credit
Suisse in New York, New York, from time to time, as Credit
Suisse's prime rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
162654.6/NYL3
<PAGE>
4
"Base Rate Lending Office" means, with respect to any Lender,
the office of such Lender or any of its Affiliates specified as its
"Base Rate Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance or in the Assumption Agreement, as the
case may be, pursuant to which it became a Lender, or such other office
of such Lender or any of its Affiliates as such Lender may from time to
time specify to the Company and the Administrative Agent for such
purpose.
"BFS" means Baltimore Financial Services Company, an unlimited
company organized under the laws of the Republic of Ireland.
"Borrowers" means, collectively, each Initial Borrower and
each Designated Subsidiary that shall become a party to this Agreement
pursuant to Section 9.08.
"Borrowers' Account" means (a) in the case of Advances
denominated in US Dollars or in any Primary Currency or Discounted
Notes, the account of one or more Borrowers maintained by such
Borrower(s) at the location specified for such Borrower(s) opposite the
currency in which such Advances or such Discounted Notes are
denominated on Schedule III hereto and (b) in any such case, such other
account of the Borrowers (or any one of them) as is agreed in writing
from time to time among the Borrowers and the Administrative Agent for
such purpose.
"Borrowing" means a Revolving Credit Borrowing, a Refinancing
Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York, or in
London, England, and, if the applicable Business Day relates to any
Eurocurrency Rate Advance, any LIBO Rate Advance, any Fixed Rate
Advance or any Discounted Note, on which dealings are carried on in the
London interbank market and banks are open for business in the country
of issue of the currency of such Eurocurrency Rate Advance, such LIBO
Rate Advance or such Fixed Rate Advance, as the case may be.
"Capitalized Leases" means all leases that have been or should
be, in accordance with generally accepted accounting principles in
effect from time to time, recorded as capitalized leases.
"Cash Flow Coverage Ratio" means, with respect to the Company
and its Subsidiaries at any date of determination, the ratio of (a)
EBITDA of the Company and its Subsidiaries for the most recently
completed consecutive four fiscal quarter period ending on such date to
(b) Consolidated Net Interest Expense for the most recently completed
consecutive four fiscal quarter period ending on such date, in each
case calculated on the basis of generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 1995 Audited Financial Statements. Calculations of
the Cash Flow Coverage Ratio shall exclude all effects of unusual or
nonrecurring credits or charges.
"Change of Control" means the occurrence of any of the
following:
162654.6/NYL3
<PAGE>
5
(a) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended) becomes the "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of Voting Stock of the Company (or
securities convertible into or exchangeable for such Voting
Stock) representing more than 30% of the combined voting power
of all Voting Stock of the Company (on a fully diluted basis);
or
(b) a majority of the members of the board of
directors of the Company are not Continuing Directors at any
time.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Commitment" means, with respect to any Lender, the amount set
forth in US Dollars opposite such Lender's name on the signature pages
hereof under the caption "Commitment" or, if such Lender has entered
into an Assignment and Acceptance or an Assumption Agreement, as the
case may be, the amount set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d), in
each case as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.17.
"Company" has the meaning specified in the recital of parties
to this Agreement.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance (each of which may be in US
Dollars or in any Foreign Currency).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances denominated in the same currency
from each of the Lenders whose offer to make one or more Competitive
Bid Advances as part of such borrowing has been accepted under the
competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" has the meaning specified in Section
2.03(f).
"Competitive Bid Reduction" means, at any time, the deemed use
of each Lender's Commitment in an amount equal to such Lender's Pro
Rata Share of all outstanding Competitive Bid Advances at such time.
"Confidential Information" means information furnished by or
on behalf of any Borrower to the Administrative Agent or any Lender in
connection with this Agreement in a writing designated by such Borrower
as confidential, but does not include any such information that (a) is
or becomes generally available to the public, (b) was available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
its disclosure to the Administrative Agent or such Lender by any
Borrower or any of its Subsidiaries or (c) is or becomes available to
the Administrative Agent or such Lender on a nonconfidential basis from
a source other than any Borrower or any of its Subsidiaries.
"Consenting Lender" has the meaning specified in Section
2.17(b).
162654.6/NYL3
<PAGE>
6
"Consolidated Net Interest Expense" means, with respect to the
Company and its Subsidiaries for any period, (a) total interest expense
(including, without limitation, the interest component on all
obligations under Capitalized Leases during such period and all
Discounts accrued during such period) of the Company and its
Subsidiaries for such period plus (b) all dividends declared on
Mandatorily Redeemable Stock during such period less (c) total interest
income of the Company and its Subsidiaries for such period, in each
case determined on a consolidated basis for the Company and its
Subsidiaries and in accordance with generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 1995 Audited Financial Statements.
"Consolidated Net Worth" means, at any date of determination,
the amount by which (a) the total assets of the Company and its
Subsidiaries (including, without limitation, items that are treated as
intangibles in accordance with generally accepted accounting principles
consistent with those applied by the Company in the preparation of the
1995 Audited Financial Statements) at such date exceed (b) the total
liabilities of the Company and its Subsidiaries at such date, in each
case determined on a consolidated basis and in accordance with
generally accepted accounting principles consistent with those applied
by the Company in the preparation of the 1995 Audited Financial
Statements.
"Continuing Director" means an individual who is a member of
the board of directors of the Company on the date of this Agreement or
whose election to the board of directors of the Company is approved by
a majority of the other Continuing Directors.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of another Type or the continuation of Revolving Credit
Advances of the same Type for another Interest Period pursuant to
Section 2.08 or 2.09.
"Credit Suisse" has the meaning specified in the recital of
parties to this Agreement.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any
time, the portion of any Advance required to be made by such Lender to
any Borrower, or the portion of any Discounted Note required to be
purchased by such Lender from Holdings, pursuant to Sections 2.01 and
2.02 or 2.03 at or prior to such time that has not been made or
purchased by such Lender or by the Administrative Agent for the account
of such Lender pursuant to Section 2.02(c) as of such time. In the
event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.16, the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Sections 2.01 and 2.02 or 2.03 on the same date as
the Defaulted Advance so deemed made in part.
"Defaulting Lender" means, at any time, any Lender that at
such time owes a Defaulted Advance.
162654.6/NYL3
<PAGE>
7
"Designated Subsidiary" means any Substantially Owned
Subsidiary designated after the date of this Agreement for borrowing
privileges hereunder pursuant to Section 9.08.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Administrative Agent, in
substantially the form of Exhibit F hereto, pursuant to which such
Designated Subsidiary shall become a Borrower hereunder in accordance
with Section 9.08.
"Discount" means, for each Discounted Note comprising part of
the same Revolving Credit Borrowing, the amount obtained by dividing
(a) the product of (i) the Face Amount of such Discounted Note
multiplied by (ii) the product of (A)(1) the Eurocurrency Rate for US
Dollars for such Discounted Note plus (2) the Applicable Margin for
such Discounted Note multiplied by (B) a fraction the numerator of
which is the number of days in the term to Maturity Date of such
Discounted Note and the denominator of which is 360 days by (b) the sum
of (i) one and (ii) the product of (A)(1) the Eurocurrency Rate for US
Dollars for such Discounted Note plus (2) the Applicable Margin in
effect for such Discounted Note multiplied by (B) a fraction the
numerator of which is the number of days in the term to Maturity Date
of such Discounted Note and the denominator of which is 360 days.
"Discounted Note" means any payment obligation of Holdings
evidenced by the Master Discounted Note and purchased by a Lender
pursuant to Section 2.01(b).
"Discounted Purchase Price" means, with respect to any
Discounted Note purchased by any Lender, the difference between (a) the
Face Amount of such Discounted Note and (b) the Discount applicable to
such Discounted Note.
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"EBITDA" means, for any period, (a) earnings before income
taxes for such period as set forth on the consolidated statements of
earnings of the Company and its Subsidiaries for such period less (or
plus) (b) other income (or expense) of the Company and its Subsidiaries
for such period to the extent included in earnings before income taxes
plus (c) Consolidated Net Interest Expense for such period plus (d) all
charges for depreciation and amortization for such period as set forth
in the consolidated statements of cash flows of the Company and its
Subsidiaries for such period less (e) any net income of BFS to the
extent such net income is derived from any business activities of BFS
unrelated to the Company or any of its Subsidiaries.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a
Lender or (c) any other Person approved by the Administrative Agent and
the Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Company nor an Affiliate of the
Company shall qualify as an Eligible Assignee.
"Environmental Action" means any suit, demand, demand letter,
claim, notice of noncompliance or violation, notice of liability or
potential liability, proceeding, consent order or
162654.6/NYL3
<PAGE>
8
consent agreement relating in any way to any Environmental Law, any
Environmental Permit or any Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any Governmental Authority or any other third party
for damages, contribution, indemnification, cost recovery, compensation
or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial determination relating to pollution or to protection
of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Lien" means a Lien in favor of a Governmental
Authority securing (a) any liability under any Environmental Law or any
Environmental Permit or (b) damages arising from, or remediation costs
or injunctive relief imposed by a Governmental Authority in response
to, the release or threatened release of Hazardous Materials.
"Environmental Permit" means any permit, license or other
authorization required under any Environmental Law.
"Equivalent" means (a) in US Dollars of any Foreign Currency
on any date of determination, the equivalent in US Dollars of such
Foreign Currency determined by using the quoted spot rate at which
Credit Suisse's principal office in New York City, New York, offers to
exchange US Dollars for such Foreign Currency in New York City, New
York, at the open of business on such date and (b) in any Foreign
Currency of US Dollars on any date of determination, the Equivalent in
such Foreign Currency of US Dollars determined by using the quoted spot
rate at which Credit Suisse's principal office in New York City, New
York, offers to exchange such Foreign Currency for US Dollars in New
York City, New York, at the open of business on such date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within
the meaning of Section 4043(c) of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC or (ii) the requirements of
paragraph (1) of Section 4043(b) of ERISA (without regard to
paragraph (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of
162654.6/NYL3
<PAGE>
9
Section 4043(c) of ERISA could reasonably be expected to occur
with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan;
(c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any
Borrower or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA;
(e) the withdrawal by any Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to
any Plan;
(g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307
of ERISA; or
(h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042
of ERISA, that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender or any of its Affiliates specified as
its "Eurocurrency Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance or the Assumption Agreement,
as the case may be, pursuant to which it became a Lender (or, if no
such office is specified, its Base Rate Lending Office), or such other
office of such Lender or any of its Affiliates as such Lender may from
time to time specify to the Company and the Administrative Agent for
such purpose.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing or for the term to Maturity Date of each Discounted Note
comprising part of the same Revolving Credit Borrowing, as the case may
be, an interest rate per annum equal to:
(a) the rate per annum at which deposits in US
Dollars or in the applicable Primary Currency, as the case may
be, appear on page 3740 or 3750 and with respect to any
Alternate Currency, such additional page upon which such
Alternate Currency may appear, as agreed between the
Administrative Agent and the Company (or a successor page
thereto) of the Dow Jones Telerate Screen at or about 11:00
A.M.
162654.6/NYL3
<PAGE>
10
(London time) two Business Days before (i) in the case of each
such Eurocurrency Rate Advance, the first day of such Interest
Period and for a period equal to such Interest Period and (ii)
in the case of each such Discounted Note, the date that such
Discounted Note is purchased by a Lender and for a period
equal to the term to Maturity Date thereof; or
(b) if such rate does not so appear on the Dow Jones
Telerate Screen at such time, the average (rounded upward to
the nearest whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the rates per annum at
which deposits in US Dollars or in the applicable Primary
Currency, as the case may be, are offered by the principal
office of each of the Reference Banks in London, England to
prime banks in the London interbank market at or about 11:00
A.M. (London time) two Business Days before (i) in the case of
each such Eurocurrency Rate Advance, the first day of such
Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
and (ii) in the case of each such Discounted Note, the date
such Discounted Note is purchased by a Lender in an amount
substantially equal to such Reference Bank's Discounted Note
comprising part of such Revolving Credit Borrowing and for a
period equal to the term to Maturity Date thereof; provided
that any determination of the Eurocurrency Rate for any
Interest Period pursuant to this clause (b) shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in US Dollars or in a Primary Currency that bears interest
as provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" means, with respect to
any Lender for any Interest Period for any Eurocurrency Rate Advance
made by such Lender from time to time, the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurocurrency Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means that certain Credit
Agreement dated as of November 18, 1992 among the Company, Holdings,
B&D Germany, Dom Sicherheitstechnik GmbH & Co. KG, B&D France, the
banks party thereto, Chemical Bank, Credit Suisse and The Bank of Nova
Scotia, as Managing Agents, and Credit Suisse, as Administrative Agent,
as amended, supplemented or otherwise modified through the date hereof.
"Extension Date" has the meaning specified in Section 2.17(b).
162654.6/NYL3
<PAGE>
11
"Face Amount" means, with respect to any Discounted Note, the
amount payable to the holder of such Discounted Note on the Maturity
Date thereof.
"Facility Fee" has the meaning specified in Section 2.04.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Financial Statements" means, with respect to any Person at
any date of determination:
(a) the financial statements of such Person and its
Subsidiaries included in the quarterly report of such Person
on Form 10-Q or the annual report of such Person on Form 10-K,
as the case may be, for the period ended on such date, in each
case as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended,
and including all financial statements of such Person and its
Subsidiaries incorporated by reference therein; or
(b) if there is no quarterly report of such Person on
Form 10-Q or annual report of such Person on Form 10-K, as the
case may be, for the period ended on such date, a consolidated
balance sheet of such Person and its Subsidiaries as at such
date and consolidated statements of earnings and cash flow
and, as applicable, changes in financial position of such
Person and its Subsidiaries for the period ended on such date
and for the period commencing at the end of the immediately
preceding fiscal year of such Person and ending on such date,
setting forth in each case in comparative form the
corresponding figures as of the end of and for the
corresponding period in the immediately preceding fiscal year
of such Person and the corresponding figures as of the end of
and for the corresponding year-to-date period in the
immediately preceding fiscal year of such Person, all in
reasonable detail.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in US Dollars or in any
Foreign Currency.
"Foreign Borrower" means Holdings, B&D, Holdings
International, B&D Germany, B&D France, B&D Nederland, Emhart and each
Designated Subsidiary organized under the laws of a jurisdiction
outside of the United States that becomes a Borrower hereunder.
"Foreign Currency" means any Primary Currency or any Alternate
Currency.
"Governmental Authority" means any nation or government or any
state, province or other political subdivision thereof, or any
governmental, executive, legislative, judicial,
162654.6/NYL3
<PAGE>
12
administrative or regulatory agency, department, authority,
instrumentality, commission, board or similar body, whether federal,
state, local or foreign.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Holdings" has the meaning specified in the recital of parties
to this Agreement.
"Holdings International" has the meaning specified in the
recital of parties to this Agreement.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company, withholding for United States income taxes, United States
back-up withholding taxes and United States withholding taxes, (b) in
the case of B&D, withholding for United Kingdom income taxes and for
United Kingdom withholding taxes, (c) in the case of B&D Germany,
withholding for withholding taxes imposed by the Federal Republic of
Germany, (d) in the case of B&D France, withholding for withholding
taxes imposed by the Republic of France, (e) in the case of each of B&D
Nederland and Holdings International, withholding for withholding taxes
imposed by The Kingdom of The Netherlands and (f) in the case of
Emhart, withholding for withholding taxes imposed by The Swiss
Confederation.
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the deferred
purchase price of property and assets or services (other than
trade payables incurred in the ordinary course of such
Person's business but only if and for so long as the same
remains payable on customary trade terms);
(c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments;
(d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement
with respect to property or assets acquired by such Person
(even though the rights and remedies of the seller or the
lender under such agreement in the event of default are
limited to repossession or sale of such property or assets);
162654.6/NYL3
<PAGE>
13
(e) all obligations of such Person as lessee under
Capitalized Leases;
(f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar
extensions of credit;
(g) all obligations of such Person in respect of
Hedge Agreements, valued at the Agreement Value thereof;
(h) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Mandatorily Redeemable Stock, valued at the
greater of (i) its voluntary or involuntary liquidation
preference and (ii) the aggregate amount payable therefor upon
purchase, redemption, defeasance or payment therefor;
(i) all Indebtedness of other Persons referred to in
clauses (a) through (h) above or clause (j) below guaranteed
directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness
or to advance or supply funds for the payment or purchase of
such Indebtedness, (ii) to purchase, sell or lease (as lessee
or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of
such Indebtedness against loss, (iii) to supply funds to, or
in any other manner to invest in, the debtor (including any
agreement to pay for property, assets or services irrespective
of whether such property or assets are received or such
services are rendered) or (iv) otherwise to assure a creditor
against loss; and
(j) all Indebtedness referred to in clauses (a)
through (i) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property and assets (including,
without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Initial Borrowers" has the meaning specified in the recital
of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or such
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day
of the period selected by the Borrower requesting such Borrowing or
Conversion pursuant to the provisions below and,
162654.6/NYL3
<PAGE>
14
thereafter, with respect to any such Eurocurrency Rate Advance, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as the Borrower requesting such Borrowing or Conversion may,
upon notice received by the Administrative Agent in accordance with the
applicable provisions of Section 2.02(a), 2.03(a)(i) or 2.09, as the
case may be, select; provided, however, that:
(a) such Borrower may not select any Interest Period
that ends after the scheduled Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(c) in the case of any such Revolving Credit
Borrowing, such Borrower shall not be entitled to select an
Interest Period having a duration of nine or twelve months
unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period,
each Lender notifies the Administrative Agent that such Lender
will be providing funding for such Revolving Credit Borrowing
with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such
Revolving Credit Borrowing shall be one, two, three or six
months, as specified by the Borrower requesting such Revolving
Credit Borrowing in the applicable Notice of Revolving Credit
Borrowing as the desired alternative to an Interest Period of
nine or twelve months;
(d) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next succeeding calendar month, the
last day of such Interest Period shall occur on the
immediately preceding Business Day; and
(e) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
162654.6/NYL3
<PAGE>
15
"Lenders" means, collectively, each Initial Lender and each
other Person that shall become a party hereto pursuant to Section 2.17
or 9.07(a), (b) and (c).
"Leverage Ratio" means, with respect to the Company and its
Subsidiaries at any date of determination, the ratio of (a) the sum
(without duplication) of (i) all Reported Net Indebtedness at such
date, (ii) all Mandatorily Redeemable Stock of the Company and its
Subsidiaries outstanding at such date (valued at the greater of (A) its
voluntary or involuntary liquidation preference and (B) the aggregate
amount payable therefor upon purchase, redemption, defeasance or
payment therefor), determined on a consolidated basis, (iii) the
aggregate book value of all accounts receivable on the books of the
purchasers thereof sold by the Company or any of its Subsidiaries to
any Person other than the Company or any of its Subsidiaries at such
date and (iv) all outstanding obligations of any Person for borrowed
money (other than any such obligations of employees in an aggregate
amount not to exceed $10,000,000 (or the Equivalent thereof in one or
more Foreign Currencies)) that is guaranteed or in effect guaranteed
by, or secured by a Lien on the property or assets of, the Company or
any of its Subsidiaries at such date to (b) (i) Consolidated Net Worth
at such date less (ii) the cumulative consolidated net income of BFS to
the extent such net income is derived from any business activities of
BFS unrelated to the Company or any of its Subsidiaries less (or plus)
(iii) the amount by which (A) the equity adjustment for foreign
currency translations used in determining Consolidated Net Worth at
such date exceeds (or is less than) (B) the amount thereof used in
determining Consolidated Net Worth as at December 31, 1995, in each
case calculated on the basis of generally accepted accounting
principles consistent with those applied by the Company in the
preparation of the 1995 Audited Financial Statements. Calculations of
the Leverage Ratio shall exclude all effects of unusual or nonrecurring
credits or charges after December 31, 1995.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to:
(a) the rate per annum at which deposits in US
Dollars or in the applicable Foreign Currency, as the case may
be, appear on page 3740 or 3750 (or a successor page thereto)
of the Dow Jones Telerate Screen or, if any Alternate Currency
does not appear on either such page (or a successor page
thereto), such additional page of the Dow Jones Telerate
Screen upon which such Alternate Currency appears, as agreed
between the Administrative Agent and the Company from time to
time, at or about 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period and for a period
equal to such Interest Period; or
(b) if such rate does not so appear on the Dow Jones
Telerate Screen at such time, the average (rounded upward to
the nearest whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the rates per annum at
which deposits in US Dollars or in the applicable Foreign
Currency, as the case may be, are offered by the principal
office of each of the Reference Banks in London, England, to
prime banks in the London interbank market at or about 11:00
A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to the
amount that would be the Reference Banks' respective Pro Rata
Shares of such Competitive Bid Borrowing if such Borrowing
were a Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest
Period;
162654.6/NYL3
<PAGE>
16
provided that any determination of the LIBO Rate for any
Interest Period pursuant to this clause (b) shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security or other charge or encumbrance
of any kind, or any other type of preferential arrangement entered into
as security, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on title to real property, but shall not include
the interest of a third party in receivables sold by any Person to such
third party on a nonrecourse basis.
"Mandatorily Redeemable Stock" means, at any date of
determination, (a) with respect to any Person, any shares of capital
stock of (or other similar ownership interest in) such Person or any
other Person that, at such date, (i) are redeemable, payable or
required to be purchased or otherwise retired or extinguished, or are
convertible into any Indebtedness or other liability of such Person,
whether mandatorily or at the option of the holder thereof (except if
an event must occur to cause or permit the holder thereof to require
redemption or repurchase of such capital stock (or such other ownership
interest) and such event has not occurred at such date) , prior to the
then scheduled Termination Date or (ii) are convertible into any shares
of capital stock (or other similar ownership interest) of the types
referred to in subclause (a)(i) above and (b) in addition, with respect
to BFS, its Class A Senior Preferred Shares.
"Master Discounted Note" means a promissory note of Holdings
in favor of the Administrative Agent, for the account of the Lenders,
in substantially the form of Exhibit A-3 hereto, evidencing the
aggregate indebtedness of Holdings to the Lenders under or in respect
of Discounted Notes.
"Material Adverse Effect" means any material adverse effect on
(a) the ability of the Company and its Subsidiaries, taken as a whole,
to perform the obligations of the Borrowers under this Agreement and
the Notes or (b) the legality, binding nature, validity or
enforceability of this Agreement or any Note as an obligation of any
Borrower that is intended to be a party thereto.
"Maturity Date" means, for each Discounted Note comprising
part of the same Revolving Credit Borrowing, the date on which the Face
Amount for such Discounted Note becomes due and payable in accordance
with the provisions set forth below, which shall be a day occurring 30,
60, 90 or 180 days after the date on which such Discounted Note is
purchased by a Lender as part of any Revolving Credit Borrowing, as
Holdings may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date on which such Discounted Note is to be purchased,
select; provided, however, that:
(a) Holdings may not select a Maturity Date for any
Discounted Note that occurs after the scheduled Termination
Date;
162654.6/NYL3
<PAGE>
17
(b) the Maturity Dates for all Discounted Notes
comprising part of the same Revolving Credit Borrowing shall
occur on the same date;
(c) Discounted Notes may not be Converted; and
(d) whenever the Maturity Date for any Discounted
Note would otherwise occur on a day other than a Business Day,
such Maturity Date shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such
extension would cause the Maturity Date for such Discounted
Note to be more than 183 days after the date that such
Discounted Note was purchased by a Lender, the Maturity Date
thereof shall occur on the immediately preceding Business Day.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto acceptable to the Required Lenders.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and at least one
Person other than the Borrowers and the ERISA Affiliates or (b) was so
maintained and in respect of which any Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"NationsBank" has the meaning specified in the recital of
parties to this Agreement.
"1995 Audited Financial Statements" means the Financial
Statements of the Company for the fiscal year of the Company ended
December 31, 1995, as filed with the Securities and Exchange Commission
on Form 10-K for such fiscal year.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means a Revolving Credit Note, a Discounted Note, a
Master Discounted Note or a Competitive Bid Note, as the context may
require.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Other Taxes" has the meaning specified in Section 2.14(b).
"Payment Office" means, with respect to any Competitive Bid
Borrowing comprised of any Alternate Currency, such office of Credit
Suisse as shall from time to time be selected by
162654.6/NYL3
<PAGE>
18
the Administrative Agent and designated by the Administrative Agent in
writing to the Borrowers and the Lenders for such purpose.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Level" means Performance Level I, Performance
Level II, Performance Level III, Performance Level IV or Performance
Level V, as appropriate.
"Performance Level I" means, at any date of determination, the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least A- by S&P or at least A3 by Moody's.
"Performance Level II" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I and (b) the non-credit enhanced long-term senior unsecured
public debt of the Company shall have a Public Debt Rating in effect on
such date of at least BBB+ by S&P or at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I or Performance Level II and (b) the non-credit enhanced
long-term senior unsecured public debt of the Company shall have a
Public Debt Rating in effect on such date of at least BBB by S&P or at
least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination,
(a) the Performance Level does not meet the requirements of Performance
Level I, Performance Level II or Performance Level III and (b) the
non-credit enhanced long-term senior unsecured public debt of the
Company shall have a Public Debt Rating in effect on such date of at
least BBB- by S&P or at least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, the
Performance Level does not meet the requirements of Performance Level
I, Performance Level II, Performance Level III or Performance Level IV.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced and remain unstayed:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b);
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business
securing obligations (other than Indebtedness for borrowed
money) that (i) are not overdue for a period of more than 30
days or (ii) are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained in accordance with generally accepted accounting
principles in effect from time to time;
162654.6/NYL3
<PAGE>
19
(c) pledges or deposits to secure obligations under
workers' compensation laws or other similar legislation (other
than in respect of employee benefit plans subject to ERISA) or
to secure public or statutory obligations;
(d) Liens securing the performance of, or payment in
respect of, bids, tenders, government contracts (other than
for the repayment of borrowed money), surety and appeal bonds
and other obligations of a similar nature incurred in the
ordinary course of business;
(e) any interest or title of a lessor or sublessor
and any restriction or encumbrance to which the interest or
title of such lessor or sublessor may be subject that is
incurred in the ordinary course of business and, either
individually or when aggregated with all other Permitted Liens
in effect on any date of determination, could not be
reasonably expected to have a Material Adverse Effect; and
(f) easements, rights of way, zoning restrictions and
other encumbrances on title to real property that do not,
either individually or in the aggregate, render title to the
property encumbered thereby unmarketable or materially and
adversely affect the use of such property for its present
purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Primary Currencies" means, collectively, the lawful currency
of the United Kingdom of Great Britain and Northern Ireland, the lawful
currency of the Federal Republic of Germany, the lawful currency of the
Republic of France, the lawful currency of The Kingdom of The
Netherlands and the lawful currency of The Swiss Confederation.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Commitment at such time and the
denominator of which is the aggregate Commitments of all Lenders at
such time and (b) such amount.
"Public Debt Rating" means, as of any date of determination,
the rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured public debt issued or to be issued by the
Company. For purposes of the foregoing:
(a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage shall be determined by reference to the
available rating;
(b) if, at any time, neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin and
the Applicable Percentage shall be set in
162654.6/NYL3
<PAGE>
20
accordance with Performance Level V under the definition of
"Applicable Margin" or "Applicable Percentage", as the case
may be;
(c) if the ratings established by S&P and Moody's
shall fall within different Performance Levels, the Applicable
Margin and/or the Applicable Percentage shall be based upon
the higher rating therefrom; provided, however, that, if the
lower of such ratings is two Performance Levels below the
higher of such ratings, the Applicable Margin and the
Applicable Percentage shall be set in accordance with the
Performance Level that is in the middle of such Performance
Levels; and provided further, however, that, if the lower of
such ratings is more than two Performance Levels below the
higher of such ratings, the Applicable Margin and/or the
Applicable Percentage shall be deemed to be the average of the
Applicable Margins or the Applicable Percentages, as the case
may be, that correspond to such ratings;
(d) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the first
Business Day after the date on which such change is announced
publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which
ratings are established by it, each reference to the Public
Debt Rating announced by S&P or Moody's shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Credit Suisse, Citibank and
Nationsbank or, in the event that any one of such banks ceases to be a
Lender hereunder at any time, any other commercial bank designated by
the Company and approved by the Required Lenders as constituting a
"Reference Bank" hereunder.
"Refinancing Borrowing" means a Revolving Credit Borrowing
consisting of the purchase of Discounted Notes on such date to the
extent that (a) the Discounted Purchase Price thereof is not greater
than the Face Amount of the Discounted Notes maturing on such date and
(b) the proceeds of such Revolving Credit Borrowing are used to
repurchase the Discounted Notes maturing on such date.
"Register" has the meaning specified in Section 9.07(d).
"Reported Net Indebtedness" means, at any date of
determination, (a) the consolidated liabilities of the Company and its
Subsidiaries at such date that are for money borrowed or that
constitute short-term borrowings or long-term debt less (b) all cash
and cash equivalents of the Company and its Subsidiaries at such date,
determined in accordance with generally accepted accounting principles
consistent with those applied by the Company in the preparation of the
1995 Audited Financial Statements.
"Required Lenders" means, at any time, Lenders owed at least a
majority in interest of the aggregate unpaid principal amount of all
Revolving Credit Advances owing to, and the aggregate Face Amount of
all outstanding Discounted Notes purchased by, Lenders at such time,
or, if no such principal amount or Face Amount is outstanding at such
time, Lenders having at least a majority in interest of the Commitments
at such time.
162654.6/NYL3
<PAGE>
21
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or the General Counsel of each
Borrower (or other executive officers of any Borrower performing
similar functions) or any other officer of any Borrower or any of its
Subsidiaries responsible for overseeing or reviewing compliance with
this Agreement and the Notes.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance.
"Revolving Credit Borrowing" means a Borrowing consisting of
simultaneous Revolving Credit Advances of the same Type and in the same
currency made, or of the simultaneous issuance of Discounted Notes by
Holdings and purchased, by each of the Lenders pursuant to Section
2.01.
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Revolving Credit Advances
made, and the Discounted Notes purchased, by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or any successor thereto acceptable to the Required
Lenders.
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of the Company that, either individually or together
with its Subsidiaries, taken as a whole, (a) accounted for more than
10% of the consolidated assets of the Company and its Subsidiaries as
of such date or (b) accounted for more than 10% of the consolidated net
income of the Company and its Subsidiaries for any of the three most
recently completed fiscal years of the Company prior to such date, in
each case as reflected on the applicable Financial Statements of the
Company at or prior to such date.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and no Person other
than the Borrowers and the ERISA Affiliates or (b) was so maintained
and in respect of which any Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Sterling" means the lawful money of the United Kingdom of
Great Britain and Northern Ireland.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of
whether at the time shares of capital stock of any other class
or classes of such corporation shall or might have voting
power upon the occurrence of any contingency),
162654.6/NYL3
<PAGE>
22
(b) the interest in the capital or profits of such
limited liability company, partnership or joint venture, or
(c) the beneficial interest in such trust or estate,
is at the time, directly or indirectly, owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries; provided, however,
that, for all purposes of this Agreement, BFS shall constitute a
Subsidiary of the Company.
"Substantial Portion" means, at any date of determination, any
part of the consolidated consumer and home improvement products segment
of the Company and its Subsidiaries (a) the assets of which constitute
more than 25% of the consolidated assets of the Company and its
Subsidiaries as of such date and (b) the related net income of which
constituted more than 25% of the consolidated net income of the Company
and its Subsidiaries for any of the three most recently completed
fiscal years of the Company prior to such date, in each case as
reflected on the applicable Financial Statements of the Company at or
prior to such date.
"Substantially Owned Subsidiary" means, at any time, any
Subsidiary of the Company of which (or in which) at least 80% of
(a) the issued and outstanding shares of capital
stock having ordinary voting power to elect a majority of the
board of directors of such Subsidiary (irrespective of whether
at the time shares of capital stock of any other class or
classes of such Subsidiary shall or might have voting power
upon the occurrence of any contingency), and/or
(b) all other ownership interests and rights to
acquire ownership interests in such Subsidiary,
is at such time, directly or indirectly, owned or controlled by the
Company, by the Company and one or more of its wholly owned
Subsidiaries or by one or more wholly owned Subsidiaries of the
Company.
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) April 23, 2001,
subject to extension thereof pursuant to Section 2.17, and (b) the date
of termination in whole of the Commitments pursuant to Section 2.05 or
6.01; provided, however, that the Termination Date of any Lender that
is a Non-Consenting Lender pursuant to Section 2.17 shall be the
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Type" refers to the distinction between Revolving Credit
Advances bearing interest at the Base Rate and at the Eurocurrency
Rate.
162654.6/NYL3
<PAGE>
23
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving
Credit Advances made, and the aggregate Face Amount of all
Discounted Notes purchased, by such Lender (in its capacity as
a Lender) and outstanding at such time; and
(ii) such Lender's Pro Rata Share of the aggregate
principal amount of Competitive Bid Advances made by the
Lenders and outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
ARTICLE II
TERMS OF THE ADVANCES AND THE DISCOUNTED NOTES
SECTION 2.01. The Advances. (a) The Revolving Credit Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make Revolving Credit Advances to any Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount for each such Advance (determined in the case of any
Revolving Credit Advance denominated in a Primary Currency by reference to the
Equivalent thereof in US Dollars on such Business Day) not to exceed such
Lender's Unused Commitment on such Business Day. Each Revolving Credit Borrowing
comprised of Revolving Credit Advances shall be in an aggregate amount of not
less than $10,000,000 (or the Equivalent thereof in the Primary Currency in
which such Revolving Credit Borrowing is denominated) (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by any Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Lenders and accepted by
such Borrower in respect of such Competitive Bid Borrowing, if such Competitive
Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type and in the same
currency made on the same day by the Lenders according to their respective Pro
Rata Shares of such Revolving Credit Borrowing. Within the limits of each
Lender's Unused Commitment, any Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).
162654.6/NYL3
<PAGE>
24
(b) The Discounted Notes. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to purchase Discounted Notes
denominated in US Dollars from Holdings from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate Face Amount for each such Discounted Note not to exceed such Lender's
Unused Commitment on such Business Day. Each Revolving Credit Borrowing
comprised of Discounted Notes shall be in an aggregate Face Amount of not less
than $10,000,000 and shall consist of Discounted Notes purchased on the same day
by the Lenders according to their respective Pro Rata Shares of such Revolving
Credit Borrowing. Within the limits of each Lender's Unused Commitment, Holdings
may borrow under this Section 2.01(b), repurchase pursuant to Section 2.10 and
reborrow under this Section 2.01(b).
SECTION 2.02. Making the Revolving Credit Advances and
Purchasing the Discounted Notes. (a) Each Revolving Credit Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing comprised of Eurocurrency Rate
Advances or Discounted Notes, or not later than 9:00 A.M. (New York City time)
on the same Business Day as the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing comprised of Base Rate Advances, by
any Borrower to the Administrative Agent, which shall give each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Revolving Credit
Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone,
confirmed immediately in writing, or by telecopier or telex, in substantially
the form of Exhibit B-1 hereto, specifying therein (i) the requested date of
such Revolving Credit Borrowing (which shall be a Business Day), (ii) whether
Discounted Notes or Advances are to comprise such proposed Revolving Credit
Borrowing and, if Advances, the requested Type of Advances comprising such
proposed Revolving Credit Borrowing, (iii) the requested aggregate principal
amount (or, in the case of Discounted Notes, the requested aggregate Face
Amount) of such Revolving Credit Borrowing and (iv) in the case of a Revolving
Credit Borrowing consisting of (A) Eurocurrency Rate Advances, the requested
initial Interest Period and currency for each such Revolving Credit Advance and
(B) Discounted Notes, (1) the requested Maturity Date of such Discounted Notes
and (2) the amount of proceeds thereof, if any, that are to constitute a
Refinancing Borrowing. In the case of a proposed Revolving Credit Borrowing
consisting of Discounted Notes, the Administrative Agent shall notify Holdings
and each Lender not later than 9:00 A.M. (New York City time) on the second
Business Day prior to the date of such proposed Revolving Credit Borrowing, by
telecopier or telex, of the Discount applicable to, and such Lender's Pro Rata
Share of the aggregate Discounted Purchase Price of, the Discounted Notes
comprising such Revolving Credit Borrowing. Each Lender shall, before 12:00 Noon
(New York City time) on the date of such Revolving Credit Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the applicable Administrative Agent's Account, in same day funds, such
Lender's Pro Rata Share of such Revolving Credit Borrowing (other than any
Revolving Credit Borrowing to the extent it constitutes a Refinancing
Borrowing), which, in the case of a Revolving Credit Borrowing comprised of
Discounted Notes, shall be equal for each Lender to the Discounted Purchase
Price of the Discounted Note purchased by such Lender as part of such Revolving
Credit Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower requesting
such Revolving Credit Borrowing at the applicable Borrowers' Account or at such
other address and account number of such Borrower as is reasonably acceptable to
the Administrative Agent and as such Borrower shall have specified in the
related Notice of Revolving Credit Borrowing. In the case of any Revolving
Credit Borrowing that constitutes in whole or in part a Refinancing Borrowing,
upon fulfillment of the applicable conditions set forth in Article III, the
Discounted Purchase Price of the Discounted Notes comprising such Refinancing
Borrowing shall be
162654.6/NYL3
<PAGE>
25
applied to redeem all or a portion of the Discounted Notes maturing on such
Business Day, without any further action by, or any transfer of funds to or
from, Holdings, the Administrative Agent or any Lender (other than the
redemption of any portion of the Discounted Notes maturing on such Business Day
that exceeds the amount of such Refinancing Borrowing).
(b) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower that requested such Borrowing. In the
case of any Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurocurrency Rate Advances or
Discounted Notes, the Borrower that requested such Borrowing shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made, or the Discounted Note
to be purchased, by such Lender as part of such Revolving Credit Borrowing when
such Revolving Credit Advance or such Discounted Note, as a result of such
failure, is not made or purchased on such date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing comprised of
Eurocurrency Rate Advances, or prior to 12:00 Noon (New York City time) on the
date of any Revolving Credit Borrowing comprised of Base Rate Advances, that
such Lender will not make available to the Administrative Agent such Lender's
Pro Rata Share of such Revolving Credit Borrowing, the Administrative Agent may
assume that such Lender has made such Pro Rata Share available to the
Administrative Agent on the date of such Revolving Credit Borrowing in
accordance with Section 2.02(a) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower requesting such Revolving
Credit Borrowing on such date a corresponding amount. If and to the extent that
such Lender shall not have so made its Pro Rata Share available to the
Administrative Agent, such Lender and such Borrower severally agree to repay to,
or to repurchase from, the Administrative Agent forthwith on demand such amount,
and (except for any Discounted Notes repurchased by Holdings pursuant to clause
(i) of this sentence) to pay interest thereon, for each day from the date such
amount is made available to such Borrower until the date such amount is repaid
to, or repurchased from, the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to the Revolving Credit
Advances, or the Accreted Value at such time of the Discounted Notes, comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the higher
of (A) the Federal Funds Rate and (B) the cost of funds incurred by the
Administrative Agent in respect of such amount. If such Lender shall repay to,
or repurchase from, the Administrative Agent such corresponding amount, such
amount so repaid or so repurchased shall constitute such Lender's Revolving
Credit Advance or the purchase by such Lender of its Discounted Note as part of
such Revolving Credit Borrowing for all purposes of this Agreement.
(d) The failure of any Lender to make the Revolving Credit
Advance to be made, or to purchase the Discounted Note to be purchased, by it as
part of any Revolving Credit Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance or to
purchase its Discounted Note, as the case may be, on the date of such Revolving
Credit Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made, or to purchase the
Discounted Note to be purchased, by such other Lender on the date of any
Revolving Credit Borrowing.
162654.6/NYL3
<PAGE>
26
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the then scheduled
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate principal amount of all
Advances outstanding at such time plus the aggregate Face Amount of all
Discounted Notes outstanding at such time shall not exceed the aggregate
Commitments of the Lenders at such time (computed without regard to any
Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying therein (A) the requested date of such proposed
Competitive Bid Borrowing (which shall be a Business Day), (B) the
requested aggregate amount of such proposed Competitive Bid Borrowing,
(C) whether such proposed Competitive Bid Borrowing shall consist of
Fixed Rate Advances or LIBO Rate Advances, (D) the requested currency
of such proposed Competitive Bid Borrowing, (E) in the case of a
Competitive Bid Borrowing consisting of (1) LIBO Rate Advances, the
requested Interest Period for each such LIBO Rate Advance and (2) Fixed
Rate Advances, the requested maturity date for repayment of each such
Fixed Rate Advance (which maturity date may not be earlier than the
date occurring seven days after the date of such proposed Competitive
Bid Borrowing or later than the earlier of (x) 180 days after the date
of such proposed Competitive Bid Borrowing and (y) the Termination
Date), (F) the requested interest payment date or dates for each
Competitive Bid Advance comprising part of such proposed Competitive
Bid Borrowing, (G) whether or not the Competitive Bid Advances
comprising such proposed Competitive Bid Borrowing may be prepaid and,
if so, whether with or without penalty, (H) the address and account
number of such Borrower to which the proceeds of such proposed
Competitive Bid Borrowing are to be advanced and (I) the requested
other terms, if any, to be applicable to such proposed Competitive Bid
Borrowing, not later than 10:00 A.M. (New York City time) (I) at least
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall specify in the related Notice of
Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders are to be fixed rate advances (the Advances comprising any
such Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and that the Fixed Rate Advances comprising such proposed
Competitive Bid Borrowing shall be denominated in US Dollars, (II) at
least three Business Days prior to the date of the proposed Competitive
Bid Borrowing, if such Borrower shall instead specify in the related
Notice of Competitive Bid Borrowing that the Advances comprising such
proposed Competitive Bid Borrowing shall be Fixed Rate Advances
denominated in a Primary Currency and (III) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in the related Notice of Competitive Bid
Borrowing that the Advances comprising such proposed Competitive Bid
Borrowing shall be Fixed Rate Advances denominated in an Alternate
Currency or are to be based on the LIBO Rate (the Advances comprising
any such Competitive Bid Borrowing being referred to herein as "LIBO
Rate Advances"); provided, however, that the Borrowers may not request
more than one Competitive Bid Borrowing on any Business Day. Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on
the Borrower that requested such Competitive Bid Borrowing. The
Administrative Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from any
Borrower.
162654.6/NYL3
<PAGE>
27
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower requesting the Competitive Bid Advances as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the
Administrative Agent (which shall give prompt notice thereof to the
Borrower requesting the Competitive Bid Borrowing), before 10:00 A.M.
(New York City time) (A) on the same Business Day as the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in US Dollars,
(B) two Business Days prior to the date of the proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances denominated in a Primary Currency, and (C) three
Business Days prior to the date of the proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances denominated in an Alternate Currency or of LIBO
Rate Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance that such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing (which amounts may,
subject to the proviso of the first sentence of this Section 2.03(a),
exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance; provided that if the Administrative
Agent, in its capacity as a Lender shall, in its sole discretion, elect
to make any such offer, it shall notify the Borrower requesting such
Competitive Bid Borrowing of such offer at least 30 minutes before the
time and on the date on which notice of such election is to be given to
the Administrative Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time) on the
date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part
of such proposed Competitive Bid Borrowing; provided that the failure
by any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower requesting any particular Competitive Bid
Borrowing shall, in turn, before (A) 10:30 A.M. (New York City time) on
the same Business Day as the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances denominated in US Dollars, (B) 11:00 A.M. (New York
City time) two Business Days prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in a Primary Currency,
and (C) 11:00 A.M (New York City time) three Business Days prior to the
date of the proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
in an Alternate Currency or of LIBO Rate Advances, either:
(1) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect; or
(2) accept one or more of the offers made by any
Lender or Lenders pursuant to Section 2.03(a)(ii), in its sole
discretion but subject to the next two succeeding sentences,
by giving notice to the Administrative Agent of the amount of
each Competitive Bid Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than
the maximum amount, notified to such Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance
162654.6/NYL3
<PAGE>
28
pursuant to Section 2.03(a)(ii)) to be made by each Lender as
part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to Section
2.03(a)(ii) by giving the Administrative Agent notice to that
effect; provided, however, that such Borrower may not accept
offers that, in the aggregate, exceed the amount of the
proposed Competitive Bid Borrowing specified in the related
Notice of Competitive Bid Borrowing. The Borrower that
requested such Competitive Bid Borrowing shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders for a particular Competitive
Bid Borrowing. If two or more Lenders have offered the same
interest rate for a particular Competitive Bid Borrowing, the
amount to be borrowed at such interest rate will be allocated
among such Lenders ratably according to the amount that each
such Lender offered at such interest rate.
(iv) If the Borrower that requested any particular Competitive
Bid Borrowing notifies the Administrative Agent that such Competitive
Bid Borrowing is cancelled pursuant to Section 2.03(a)(iii)(1), the
Administrative Agent shall give prompt notice thereof to each of the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower that requested any particular Competitive
Bid Borrowing accepts one or more of the offers made by any Lender or
Lenders pursuant to Section 2.03(a)(iii)(2) in respect of such
Competitive Bid Borrowing, the Administrative Agent shall in turn
promptly notify (A) each Lender that has made an offer as described in
Section 2.03(a)(ii) of the date and the aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to Section 2.03(a)(ii) have been accepted by
such Borrower and (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, (1) of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing and (2) upon receipt, that the Administrative
Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender that is to
make a Competitive Bid Advance as part of any Competitive Bid Borrowing
shall, before 12:00 Noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to subclause (v)(A) of the immediately
preceding sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to subclause
(v)(B)(2) of the immediately preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative Agent at
(x) in the case of a Competitive Bid Borrowing denominated in US
Dollars or in a Primary Currency, at the applicable Administrative
Agent's Account, in same day funds, such Lender's portion of such
Competitive Bid Borrowing in US Dollars or in such Primary Currency, as
the case may be, and (y) in the case of a Competitive Bid Borrowing
denominated in an Alternate Currency, at the Payment Office for such
Alternate Currency (as shall have been notified by the Administrative
Agent to the Lenders prior thereto), in same day funds, such Lender's
portion of such Competitive Bid Borrowing in such Alternate Currency.
Upon fulfillment of the applicable conditions set forth in Article III
and after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower
that requested such Borrowing at the address and the account number
specified by such Borrower in the related Notice of Competitive Bid
Borrowing or, if no such address and account number are specified in
the related Notice of Competitive Bid Borrowing, at the applicable
Administrative Agent's Account or the applicable Payment Office, as the
case may be.
162654.6/NYL3
<PAGE>
29
Promptly after (I) each Competitive Bid Borrowing, the Administrative
Agent will notify each Lender of the amount of such Competitive Bid
Borrowing, the corresponding Competitive Bid Reduction resulting
therefrom and the dates upon which such Competitive Bid Reduction
commenced and will terminate and (II) the prepayment of any Competitive
Bid Borrowing by the applicable Borrower, the Administrative Agent will
notify each Lender of the amount and date of each such prepayment and
the amount, if any, of the corresponding Competitive Bid Reduction
remaining after giving effect thereto.
(vi) If the Borrower that requested any particular Competitive
Bid Borrowing notifies the Administrative Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to Section
2.03(a)(iii)(2), such notice of acceptance shall be irrevocable and
binding on such Borrower. Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the Notice
of Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding any loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be (i) in the case of
a Competitive Bid Borrowing denominated in US Dollars or in a Primary Currency,
in an aggregate amount of not less than $5,000,000 (or the Equivalent thereof in
such Primary Currency) or (ii) in the case of a Competitive Bid Borrowing
denominated in an Alternate Currency, in the Equivalent of not less than
$2,000,000 in such Alternate Currency and, following the making of each
Competitive Bid Borrowing, the Borrowers shall be in compliance with the
limitation set forth in the proviso to the first sentence of Section 2.03(a).
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under Section 2.03(a),
repay pursuant to Section 2.06(c) or prepay pursuant to Section 2.03(d), and
reborrow under Section 2.03(a).
(d) The Borrower to which any particular Competitive Bid
Borrowing is made shall have no right to prepay the principal amount of any
Competitive Bid Advance (or any portion thereof) unless, and then only on the
terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to Section
2.03(a)(i) and, if applicable, set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.
(e) The Borrower to which any particular Competitive Bid
Borrowing is made shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for and in the currency of such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to Section 2.03(a)(ii), payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and, if applicable, provided in the Competitive
Bid Note evidencing such Competitive Bid Advance.
162654.6/NYL3
<PAGE>
30
(f) Each Borrower agrees that, upon notice by any Lender to
such Borrower (with a copy of such notice to the Administrative Agent) to the
effect that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) any Competitive Bid Advance to be made to such
Borrower by such Lender as part of a Competitive Bid Borrowing, such Borrower
shall promptly execute and deliver to such Lender a separate promissory note, in
substantially the form of Exhibit A-2 hereto (each, a "Competitive Bid Note"),
payable to the order of such Lender in a principal amount equal to the amount of
indebtedness of such Borrower resulting from such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. Each Borrower jointly
and severally agrees to pay to the Administrative Agent, for the account of each
Lender, a facility fee (the "Facility Fee") on the daily amount of such Lender's
Commitment (whether used or unused) from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until, in each case, the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last Business Day
of each June, September, December and March, commencing June 28, 1996, and on
the Termination Date.
(b) Agents' Fees. The Company shall pay to each of the
Administrative Agent, the Documentation Agent and the Syndication Agent, for its
own account, such fees as may from time to time be agreed in various fee letters
between the Company, on the one hand, and the Administrative Agent, the
Documentation Agent or the Syndication Agent, on the other hand.
SECTION 2.05. Termination or Reduction of the Commitments. The
Borrowers shall have the right, upon at least five days' notice to the
Administrative Agent, to irrevocably terminate in whole or reduce ratably in
part the aggregate Unused Commitments of the Lenders; provided that each partial
reduction shall be in the aggregate amount of $25,000,000 or an integral
multiple of $5,000,000 in excess thereof or, if less, the aggregate amount of
the Commitments at such time.
SECTION 2.06. Repayment of Advances and Repurchase of
Discounted Notes. (a) Repayment of Revolving Credit Advances. Each Borrower
shall repay to the Administrative Agent, for the ratable account of the Lenders
on the Termination Date the aggregate principal amount of all Revolving Credit
Advances made to such Borrower and outstanding on such date.
(b) Repurchase of Discounted Notes. Holdings shall redeem or
repurchase all Discounted Notes from the Administrative Agent, for the ratable
account of the Lenders (i) on the Maturity Date specified for such Discounted
Notes at the Face Amount of all such Discounted Notes comprising the same
Revolving Credit Borrowing or (ii) if earlier, on the Termination Date at a
purchase price equal to the aggregate Accreted Value of all outstanding
Discounted Notes on such date.
(c) Repayment of Competitive Bid Advances. Each Borrower shall
repay to the Administrative Agent, for the account of each Lender that has made
a Competitive Bid Advance, the aggregate outstanding principal amount of each
Competitive Bid Advance made to such Borrower and owing to such Lender on the
earlier of (i) the maturity date therefor, in the case of any such Competitive
Bid Advance that is a Fixed Rate Advance, or the last day of the Interest Period
therefor, in the case of any such Competitive Bid Advance that is a LIBO Rate
Advance, in each case as specified in the related
162654.6/NYL3
<PAGE>
31
Notice of Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i)
and, if applicable, provided in the Competitive Bid Note evidencing such
Competitive Bid Advance, and (ii) the Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance made to such Borrower and owing to each
Lender from the date of such Revolving Credit Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable in arrears
quarterly on the last Business Day of each June, September, December
and March during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (A) the Eurocurrency Rate for such
Interest Period for such Revolving Credit Advance plus (B) the
Applicable Margin in effect from time to time during such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on:
(i) the unpaid principal amount of each Revolving Credit
Advance made to such Borrower and owing to each Lender, payable in
arrears on the dates referred to in Section 2.07(a)(i) or 2.07(a)(ii),
at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Revolving Credit Advance pursuant
to Section 2.07(a)(i) or 2.07(a)(ii), as applicable;
(ii) the unpaid principal amount of each Competitive Bid
Advance made to such Borrower and owing to any Lender, payable in
arrears on the date or dates interest is payable on such Competitive
Bid Advance, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Competitive Bid
Advance in the offer made by such Lender pursuant to Section
2.03(a)(ii) and accepted by such Borrower under Section 2.03(a)(v) and,
if applicable, provided in the Competitive Bid Note evidencing such
Competitive Bid Advance; and
(iii) to the fullest extent permitted by applicable law, the
amount of any interest, fees or other amounts (including, without
limitation, any Discounted Note) owing by such Borrower to the
Administrative Agent or any Lender under this Agreement or any Note
that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Advances pursuant to Section 2.07(a)(i).
162654.6/NYL3
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32
(c) Additional Interest on Eurocurrency Rate Advances. Each
Borrower shall pay to each Lender, so long as and to the extent such Lender
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurocurrency Rate Advance of such Lender, from
the date of such Eurocurrency Rate Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the Eurocurrency Rate for the applicable Interest
Period for such Eurocurrency Rate Advance from (b) the rate obtained by dividing
such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Administrative Agent
and the Borrowers of any such additional interest arising in connection with any
such Eurocurrency Rate Advance, which notice shall be conclusive and binding,
absent manifest error; provided, however, that no Lender shall be entitled to
additional interest on any Eurocurrency Rate Advance pursuant to this Section
2.07(c) for any period occurring more than 90 days prior to the date that notice
of such additional interest is first provided by such Lender to the Borrowers.
SECTION 2.08. Interest Rate and Discount Determination. (a)
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurocurrency Rate and each LIBO
Rate in accordance with clause (b) of the respective definitions thereof set
forth in Section 1.01 and, if necessary, each Discount. If any one of the
Reference Banks shall not furnish such timely information to the Administrative
Agent for the purpose of determining any such interest rate or Discount, the
Administrative Agent shall determine such interest rate or Discount on the basis
of timely information furnished by the remaining Reference Banks. The
Administrative Agent shall give prompt notice to the Borrowers and the Lenders
of the applicable interest rate determined by the Administrative Agent for
purposes of Section 2.07(a)(i) or 2.07(a)(ii) and, if applicable, the rate, if
any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurocurrency Rate for
any Interest Period for such Eurocurrency Rate Advances will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurocurrency Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the affected Borrowers and the
Lenders, whereupon (i) such Eurocurrency Rate Advances will automatically, on
the last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advances are denominated in US Dollars, Convert into Base Rate
Advances and (B) if such Eurocurrency Rate Advances are denominated in a Primary
Currency, be exchanged for an Equivalent amount of US Dollars and Converted into
Base Rate Advances and (ii) the obligation of the Lenders to make Eurocurrency
Rate Advances shall be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist. If, with respect to Discounted Notes having a particular Maturity
Date, the Required Lenders notify the Administrative Agent that the Eurocurrency
Rate for such Discounted Notes will not adequately reflect the cost to such
Required Lenders of purchasing, funding or maintaining their respective
Discounted Notes, the Administrative Agent shall forthwith so notify Holdings
and the Lenders, whereupon the obligation of the Lenders to purchase such
Discounted Notes or any other Discounted Notes shall be suspended until the
Administrative Agent shall notify Holdings and the Lenders that the
circumstances causing such suspension no longer exist.
162654.6/NYL3
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33
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances made or to be made to such
Borrower in accordance with the provisions contained in the definition of
"Interest Period" set forth in Section 1.01, the Administrative Agent will
forthwith so notify such Borrower and the Lenders and such Eurocurrency Rate
Advances will automatically, on the last day of the then existing Interest
Period therefor, (i) if such Eurocurrency Rate Advances are denominated in US
Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Primary Currency, be exchanged for an Equivalent
amount of US Dollars and Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in US Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in
a Primary Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance and (ii) the obligation of the Lenders to
make Eurocurrency Rate Advances, and to purchase Discounted Notes from Holdings,
shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurocurrency Rate
for any Eurocurrency Rate Advances or the LIBO Rate for any LIBO Rate Advances
in accordance with clause (b) of the respective definitions thereof set forth in
Section 1.01 or, if necessary, the Discount for any Discounted Notes:
(i) the Administrative Agent shall forthwith notify the
affected Borrower and the Lenders that the interest rate cannot be
determined for such Eurocurrency Rate Advances or such LIBO Rate
Advances or that the Discount cannot be determined for such Discounted
Notes, as the case may be;
(ii) with respect to Eurocurrency Rate Advances, each such
Eurocurrency Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in US Dollars, Convert into a Base Rate Advance
and (B) if such Eurocurrency Rate Advance is denominated in a Primary
Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance (or, if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances, or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances, or to purchase Discounted Notes, shall
be suspended until the Administrative Agent shall notify the Borrowers
and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. Each Borrower may on any Business Day on which no Default has occurred
and is continuing, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion in the case of a Conversion of Base Rate Advances into
Eurocurrency Rate Advances or of Eurocurrency Rate Advances of one Interest
Period into Eurocurrency Rate Advances denominated in the same currency and of
another Interest Period, or not later than 1:00 P.M. (New York City time) on the
same Business Day as the date of the proposed Conversion in the case of a
Conversion of Eurocurrency Rate Advances into Base Rate Advances, and, in any
case, subject to
162654.6/NYL3
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34
the provisions of Sections 2.08, 2.09 and 2.13, Convert all Revolving Credit
Advances comprising one or more Borrowings into one or more Borrowings comprised
of Revolving Credit Advances so long as, after giving effect to any such
Conversion, each Revolving Credit Borrowing is comprised of Revolving Credit
Advances denominated in the same currency and, in the case of any Borrowing
comprised of Eurocurrency Rate Advances, having the same Interest Period;
provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result in
(i) any Revolving Credit Borrowing failing to comply with the second
sentence of Section 2.01 or (ii) the aggregate principal amount of all
outstanding Advances, and the aggregate Face Amount of all outstanding
Discounted Notes, at the time of such Conversion exceeding the
aggregate Commitments of the Lenders at such time;
(b) No Eurocurrency Rate Advances of one currency shall be
Converted into Eurocurrency Rate Advances of another currency; and
(c) In the case of any Conversion of Eurocurrency Rate
Advances of one Interest Period into Eurocurrency Rate Advances of
another Interest Period or of Eurocurrency Rate Advances into Base Rate
Advances other than on the last day of an Interest Period therefor, the
Borrower requesting such Conversion shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted and (iii) if such Conversion is
into Eurocurrency Rate Advances, the currency of and the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower requesting such Conversion.
SECTION 2.10. Prepayments of Revolving Credit Advances and
Repurchases of Discounted Notes. (a) Optional Prepayments. Each Borrower may,
upon at least the same Business Day's notice to the Administrative Agent
received not later than 11:00 A.M. (New York City time) in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, and upon at least
three Business Days' notice to the Administrative Agent received not later than
11:00 A.M. (New York City time) in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances or Discounted Notes, stating the
proposed date and aggregate principal amount of the prepayment or, in the case
of Discounted Notes, aggregate Face Amount of the repurchase, and if such notice
is given such Borrower shall, (i) in the case of Revolving Credit Advances,
prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid, and (ii) in the case of Discounted Notes, repurchase,
by payment of the Accreted Value to the date of such repurchase of the
outstanding Discounted Notes comprising part of the same Revolving Credit
Borrowing in whole or ratably in part; provided, however, that (A) each partial
prepayment or repurchase, as the case may be, shall be in an aggregate amount of
not less than $10,000,000 (or the Equivalent thereof in the Primary Currency in
which such Revolving Credit Borrowing is denominated, determined on the date the
related notice of prepayment or repurchase is given) and (B) in the case of any
such prepayment of Eurocurrency Rate Advances or any such repurchase of
Discounted Notes, such Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 9.04(c).
162654.6/NYL3
<PAGE>
35
(b) Mandatory Prepayments. If, on any date, the Administrative
Agent notifies the Company that the sum of (i) the aggregate principal amount of
all Advances denominated in US Dollars, and the aggregate Face Amount of all
Discounted Notes, outstanding on such date and (ii) the Equivalent in US Dollars
of the aggregate principal amount of all Advances denominated in Foreign
Currencies outstanding on such date exceeds 100% of the aggregate Commitments of
the Lenders on such date, then the Company and each of the other Borrowers
jointly and severally agree to prepay or to repurchase, as soon as practicable
and in any event within three Business Days of such notice, subject to the
proviso to this sentence set forth below, the outstanding principal amount of
any Advances owing by such Borrower and/or, in the case of Holdings, the
outstanding Discounted Notes with an Accreted Value to the date of such
repurchase in an aggregate amount sufficient to reduce such sum to an amount not
to exceed 100% of the aggregate Commitments of the Lenders on such date,
together with any interest accrued to the date of such prepayment on the
aggregate principal amount of Advances prepaid; provided that if the aggregate
principal amount of Base Rate Advances outstanding at the time of such required
prepayment is less than the amount of such required prepayment, the portion of
such required prepayment in excess of the aggregate principal amount of Base
Rate Advances then outstanding shall be deferred until the earliest to occur of
the last day of the Interest Period of the outstanding Eurocurrency Rate
Advances or the outstanding LIBO Rate Advances, the Maturity Date of the
outstanding Discounted Notes and/or the maturity date of the outstanding Fixed
Rate Advances, as the case may be, in an aggregate amount equal to the excess of
such required prepayment. The Administrative Agent shall give prompt notice of
any prepayment required under this Section 2.10(b) to the Borrowers and the
Lenders, and shall provide prompt notice to the Borrowers of any such notice of
required prepayment received by it from any Lender.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law, rule or regulation or (ii)
the compliance with, or the implementation or administration (or change in the
administration or enforcement) of, any directive, guideline or request from any
central bank or other Governmental Authority, whether or not having the force of
law, there shall be any increase in the cost to any Lender of agreeing to make
or making, to purchase or purchasing, funding or maintaining Eurocurrency Rate
Advances, LIBO Rate Advances or Discounted Notes, or any reduction in the amount
owing to, or effective return earned or realizable by, any Lender under this
Agreement or any Note in respect of any such Advances or Discounted Notes, as
the case may be (including for purposes of this Section 2.11 any such increased
costs resulting from Taxes or Other Taxes for which the Borrowers are obligated
to reimburse the Administrative Agent or the Lenders under Section 2.14), then
the Borrowers jointly and severally agree to pay from time to time to the
Administrative Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for all such increased costs or reduced
amounts or return, such additional compensation to be paid by the Borrowers
within 15 days of the date of demand therefor by such Lender (with a copy of
such demand to the Administrative Agent) for all additional compensation accrued
prior to such demand and on the dates specified by such Lender in such demand
for all such additional compensation owing to such Lender thereafter; provided,
however, that if a Lender fails to deliver a demand for any additional
compensation to which it is entitled under this Section 2.11(a) within 180 days
after such Lender becomes entitled thereto, such Lender shall only be entitled
to additional compensation for any such amounts incurred prior to the date of
such demand that accrued from and after the date that is 180 days prior to the
date such Lender delivers such demand and for all such additional compensation
that shall accrue on and after the date of such demand; and provided further,
however, that before making any such demand, each Lender agrees to use
reasonable efforts
162654.6/NYL3
<PAGE>
36
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased
cost or reduced amount or return and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate as to
the amount of such increased cost or reduced amount or return in reasonable
detail (including the basis of calculation thereof), submitted to the Borrowers
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law,
rule or regulation or any directive, guideline or request from any central bank
or other Governmental Authority, or any change therein or in the implementation,
administration or enforcement thereof, that is enacted or becomes effective, or
is implemented or is first required or expected to be complied with, after the
date of this Agreement, whether or not having the force of law, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or is based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then the
Borrowers jointly and severally agree to pay from time to time to the
Administrative Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder, such additional compensation to be paid by the Borrowers
within 15 days of the date of demand therefor by such Lender (with a copy of
such demand to the Administrative Agent) for all additional compensation accrued
prior to such demand and on the dates specified by such Lender in such demand
for all such additional compensation owing to such Lender thereafter; provided,
however, that if a Lender fails to deliver a demand for any additional
compensation to which it is entitled under this Section 2.11(b) within 180 days
after such Lender becomes entitled thereto, such Lender shall only be entitled
to additional compensation for any such amounts incurred prior to the date of
such demand that accrued from and after the date that is 180 days prior to the
date such Lender delivers such demand and for all such additional compensation
that shall accrue on and after the date of such demand. A certificate as to such
amounts in reasonable detail (including the basis of calculation thereof),
submitted to the Borrowers and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(c) If a Lender demands additional compensation under Section
2.11(a) or 2.11(b) with respect to Eurocurrency Rate Advances or Discounted
Notes, the Borrowers may (but shall not be obligated to), upon at least five
Business Days' notice to such Lender (with a copy of such notice to the
Administrative Agent), elect that, until the circumstances causing such demand
for additional compensation no longer apply to such Lender, all Eurocurrency
Rate Advances that would otherwise be made, and all Discounted Notes that would
otherwise be purchased, by such Lender as part of any Revolving Credit Borrowing
shall be made instead as Base Rate Advances, and all payments of principal of
and interest on such Base Rate Advances shall be made at the same time as
payments on the Eurocurrency Rate Advances or the Discounted Notes, as the case
may be, otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law, rule or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its
162654.6/NYL3
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37
obligations hereunder to make Eurocurrency Rate Advances or LIBO Rate Advances
or to purchase Discounted Notes, or to fund or maintain Eurocurrency Rate
Advances, LIBO Rate Advances or Discounted Notes, (a) each Eurocurrency Rate
Advance or LIBO Rate Advance, as the case may be, of such Lender will
automatically, on the last day of the Interest Period then in effect therefor if
permitted by applicable law or otherwise upon demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i) and (b) the obligation of such Lender to make Eurocurrency Rate
Advances or LIBO Rate Advances, to Convert Revolving Credit Advances into
Eurocurrency Rate Advances or to purchase Discounted Notes shall be suspended
until the Administrative Agent shall notify the Borrowers (promptly following
notice from such Lender) that the circumstances causing such suspension no
longer exist; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurocurrency Lending
Office if the making of such a designation would allow such Lender or its
Eurocurrency Lending Office to continue to perform its obligations to make
Eurocurrency Rate Advances or LIBO Rate Advances, and to purchase Discounted
Notes, or to continue to fund or maintain Eurocurrency Rate Advances, LIBO Rate
Advances or Discounted Notes, and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. If the obligation of a
Lender to make Eurocurrency Rate Advances or to purchase Discounted Notes is
suspended pursuant to this Section 2.12, then, until the circumstances causing
such suspension no longer apply to such Lender, all Eurocurrency Rate Advances
that would otherwise be made, and all Discounted Notes that would otherwise be
purchased, by such Lender as part of any Revolving Credit Borrowing shall be
made instead as Base Rate Advances, and all payments of principal of and
interest on such Base Rate Advances shall be made at the same time as payments
on the Eurocurrency Rate Advances or the Discounted Notes, as the case may be,
otherwise comprising part of such Revolving Credit Borrowing.
SECTION 2.13. Payments and Computations. (a) Each Borrower
shall make each payment required to be made by it hereunder and under the Notes,
except with respect to principal of, interest on and other amounts arising from,
or incurred in respect of, Advances denominated in a Foreign Currency, not later
than 11:00 A.M. (New York City time) on the day when due in US Dollars to the
Administrative Agent at the applicable Administrative Agent's Account, in same
day funds. Each Borrower shall make each payment required to be made by it
hereunder and under the Notes with respect to principal of, interest on and
other amounts arising from, or incurred in respect of, Advances denominated in a
Foreign Currency not later than 11:00 A.M. (at the time of the jurisdiction in
which the applicable Administrative Agent's Account or the Payment Office for
such Foreign Currency is located) on the day when due in such Foreign Currency
to the Administrative Agent, in same day funds, (i) in the case of each Primary
Currency, at the applicable Administrative Agent's Account and (ii) in the case
of each Alternate Currency, by deposit of such funds to the account of the
Administrative Agent maintained at the applicable Payment Office. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or the Facility Fee ratably
(other than amounts payable pursuant to Section 2.02(c), 2.03, 2.07(c), 2.11,
2.12, 2.14, 2.15, 2.17 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior
162654.6/NYL3
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38
to such effective date directly between themselves. Upon any Assuming Lender
becoming a Lender hereunder as a result of an extension of the Termination Date
pursuant to Section 2.17, and upon the Administrative Agent's receipt of such
Lender's Assumption Agreement and recording the information contained therein in
the Register pursuant to Section 2.17(d), from and after the applicable
Extension Date, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assumed thereby to the Assuming
Lender.
(b) All computations of interest that are based on clause (a)
of the definition of "Base Rate" set forth in Section 1.01, the Eurocurrency
Rate for Revolving Credit Advances denominated in Sterling and the LIBO Rate for
Competitive Bid Advances denominated in Sterling or in an Alternate Currency
where the market convention for such currency is a basis of 365 or 366 days and
of Facility Fees shall be made by the Administrative Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
that are otherwise based on the Eurocurrency Rate or the LIBO Rate or that are
based on the Federal Funds Rate and of Discount shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are payable or
such Discount has accreted. Each determination by the Administrative Agent of an
interest rate or Discount hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances, or
the payment of the Face Amount or the Accreted Value of any Discounted Notes, to
be made in the next following calendar month, such payment shall be made on the
immediately preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower required to make any payment hereunder prior to the date on
which such payment is due to the Lenders hereunder that such Borrower will not
make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender,
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the higher of (i) the Federal Funds Rate and (ii) the
cost of funds incurred by the Administrative Agent in respect of such amount.
(e) To the extent that the Administrative Agent receives funds
for application to the amounts owing by any Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Section 2.13, the Administrative Agent
shall be entitled to convert or exchange such funds into US Dollars or into a
Foreign Currency or from US Dollars to a Foreign Currency or from a Foreign
Currency to US Dollars, as the case may be, to the extent necessary to enable
the Administrative Agent to distribute such funds in accordance with the terms
of this Section 2.13; provided that each of the Borrowers and each of the
Lenders hereby agree that the Administrative
162654.6/NYL3
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39
Agent shall not be liable or responsible for any loss, cost or expense suffered
by such Borrower or such Lender as a result of any conversion or exchange of
currencies effected pursuant to this Section 2.13(e) or as a result of the
failure of the Administrative Agent to effect any such conversion or exchange;
and provided further that the Borrowers jointly and severally agree to indemnify
the Administrative Agent and each Lender, and hold the Administrative Agent and
each Lender harmless, for any and all losses, costs and expenses incurred by the
Administrative Agent or any Lender for any conversion or exchange of currencies
(or the failure to convert or exchange any currencies) in accordance with this
Section 2.13(e).
SECTION 2.14. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income and franchise taxes imposed on it
by the jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income and
franchise taxes imposed on it by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under any of the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by applicable law to deduct any
Taxes from or in respect of any sum paid or payable hereunder or under any Note
to any Lender or the Administrative Agent, or, if the Administrative Agent shall
be required by law to deduct any Taxes from or in respect of any sum paid or
payable hereunder or under any Note to any Lender, (i) the sum payable by such
Borrower shall be increased by such Borrower as may be necessary so that, after
making all required deductions (including deductions, whether by such Borrower
or the Administrative Agent, applicable to additional sums payable under this
Section 2.14), such Lender and the Administrative Agent each receive an amount
equal to the sum they each would have received had no such deductions been made
(for example, and without limitation, if the sum paid or payable hereunder from
or in respect of which a Borrower or the Administrative Agent shall be required
to deduct any Taxes is interest, the interest payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions applicable to additional interest),
such Lender and the Administrative Agent each receive interest equal to the
interest they each would have received had no such deduction been made), (ii)
such Borrower (or, as the case may be and as required by applicable law, the
Administrative Agent) shall make such deductions and (iii) such Borrower (or, as
the case may be and as required by applicable law, the Administrative Agent)
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any taxes imposed by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Administrative
Agent, as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender
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40
or the Administrative Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 9.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under any of the Notes,
if any Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall within 30 days after any request from the Administrative Agent or
any Lender furnish to the Administrative Agent or such Lender a certificate from
the appropriate taxing authority or an opinion of counsel or of independent
certified public accountants acceptable to the Administrative Agent or such
Lender, as the case may be, stating that such payment is exempt from Taxes.
(e) Each Lender shall (i) promptly after the Effective Date in
the case of each Initial Lender and promptly after the date of the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which it became a Lender in the case of each other Lender and (ii) from time to
time thereafter upon the obsolescence or expiration of any previously delivered
form or certificate (but only so long as such Lender remains lawfully able to do
so), provide the Company and the Administrative Agent with any form or
certificate that is required by any taxing authority (including, if applicable,
two original Internal Revenue Service forms 1001 or 4224, as appropriate (or any
successor form or other form prescribed by the Internal Revenue Service), an
original Internal Revenue Service form W-9 (or any successor form), or to the
extent permitted by applicable law, as an alternative to forms 1001 or 4224, two
original Internal Revenue Service forms W-8 (or any successor form prescribed by
the Internal Revenue Service), certifying that such Lender is exempt from United
States federal withholding tax pursuant to Section 871(h) or 881(c) of the
Internal Revenue Code, together with an annual certificate stating that such
Lender is not a "person" or other entity described in Section 871(h)(3) or
881(c)(3) of the Internal Revenue Code) as shall be appropriate to establish,
subject to the last sentence of this Section 2.14(e) that such Lender is exempt
from Home Jurisdiction Withholding Taxes on payments pursuant to this Agreement
or the Notes (or, in the case of a Lender that becomes a party to this Agreement
pursuant to Section 2.17 or 9.07(a), (b) and (c), exempt from or entitled to a
reduced rate of Home Jurisdiction Withholding Taxes on payments pursuant to this
Agreement or the Notes that is no greater than the rate to which the
Non-Consenting Lender or the assigning Lender, as applicable, was entitled);
provided, however, that such Lender shall have been advised in writing by each
Borrower (including at the time any renewal form is due) of the form or
certificate applicable to it, determined by reference to the jurisdiction of
organization and Applicable Lending Offices of such Lender set forth on Schedule
I hereto, in the case of each Initial Lender, or to the jurisdiction of
organization and Applicable Lending Offices of such Lender set forth in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender, in the case of each other Lender, or such
other branch or office of such Lender designated by such Lender from time to
time as the branch or office at which any of its Advances are to be made or
maintained or its Discounted Notes are to be purchased or maintained. Each
Lender shall promptly notify the Company and the Administrative Agent if,
because of any change in the jurisdiction of organization or an Applicable
Lending Office of such Lender, (A) it is required to withdraw or cancel any form
or certificate previously submitted by it or any form or certificate has
otherwise become ineffective or inaccurate or (B) payments to it are or will be
subject to withholding of any Home Jurisdiction Withholding Tax to a greater or
lesser extent than the extent to which payments to it pursuant to this Agreement
or the Notes were previously subject. If any form or document referred to in
this Section 2.14(e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender
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41
shall give notice thereof to the Company and the Administrative Agent and shall
not be obligated to include in such form or document such confidential
information. No Lender shall be required to provide a form or certificate
pursuant to this Section 2.14(e) to establish that such Lender is exempt from
any withholding for income taxes or withholding taxes on payments from Holdings
pursuant to this Agreement or the Notes.
(f) For any period with respect to which a Lender has failed,
within 30 days of such Lender's receipt of written advice to such effect from
any Borrower, to provide the Company and such Borrower with the appropriate form
or certificate described in Section 2.14(e) (other than if such failure is due
to a change in law (including, without limitation, any change in regulation or
change in the interpretation of any statute or regulation or other rule of law)
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first sentence of
Section 2.14(e)), such Lender shall not be entitled to indemnification under
Section 2.14(a) or 2.14(c) with respect to Taxes imposed by the United States,
the Federal Republic of Germany, The Kingdom of the Netherlands, the Republic of
France, The Swiss Confederation, or the United Kingdom by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrowers shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) Each Lender shall promptly upon the request of the
Administrative Agent take all action (including without limitation the
completion of forms and the provision of information to the appropriate taxing
authorities) reasonably requested by the Administrative Agent, and the
Administrative Agent shall, to the extent appropriate and reasonable, take
similar action, to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes imposed by the United Kingdom in relation to
any amounts payable under this Agreement or any of the Notes. The action to be
taken by the Lenders pursuant to this Section 2.14(g) shall include any steps
reasonably requested by the Administrative Agent that are prescribed in
regulations promulgated under section 118H of the United Kingdom Income and
Corporation Taxes Act 1988 (assuming enactment of such section as set out in
draft form in the United Kingdom Finance Bill 1996 as of the date of this
Agreement) as conditions for the payments referred to in such section not to be
treated as chargeable payments or chargeable receipts.
(h) Notwithstanding the foregoing provisions of this Section
2.14, no Borrower shall be required to pay any additional amount to any Lender
or the Administrative Agent pursuant to Section 2.14(a) or 2.14(c) in respect of
withholding for United States, the Federal Republic of Germany, The Kingdom of
the Netherlands, the Republic of France, The Swiss Confederation and/or United
Kingdom income taxes or United States back-up withholding taxes, except to the
extent such taxes are required to be withheld as a result of any amendment to
the laws (or any regulations thereunder) of the United States, the Federal
Republic of Germany, The Kingdom of the Netherlands, the Republic of France, The
Swiss Confederation, or the United Kingdom, as the case may be, or any amendment
to, or change in, any interpretation or application of any such laws or
regulations by any Governmental Authority or to the extent such taxes are
required to be withheld with respect to any Borrowings by Holdings that are
comprised of Advances.
(i) Any Lender claiming additional amounts payable pursuant to
this Section 2.14 (including, without limitation, any additional amounts that
any Lender would be entitled to claim under this Section 2.14 with respect to
payments from a Designated Subsidiary that becomes a Borrower pursuant to
Section 9.08) shall use reasonable efforts (consistent with its internal policy
and legal and
162654.6/NYL3
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42
regulatory restrictions) to file any certificate or document requested by any
Borrower or to change the jurisdiction of its Applicable Lending Office if the
making of such filing or change would avoid the need for or reduce the amount of
any such additional amounts which may thereafter accrue and would not, in the
sole judgment of such Lender, be disadvantageous to such Lender. Each Borrower
shall promptly upon request by any Lender or the Administrative Agent take all
actions (including, without limitation, the completion of forms and the
provision of information to the appropriate taxing authorities) reasonably
requested by such Lender or the Administrative Agent to secure the benefit of
any exemption from, or relief with respect to, Taxes or Other Taxes in relation
to any amounts payable under this Agreement.
(j) In the event that an additional payment is made under
Section 2.14(a) or 2.14(c) for the account of any Lender and such Lender, in its
sole opinion, determines that it has received or been granted a credit against
or release or remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such payment, such Lender shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief, remission or
repayment, pay to the Company or to the applicable Borrower such amount as such
Lender shall, in its sole opinion, have determined to be attributable to such
deduction or withholding and as will leave such Lender (after such payment) in
no better or worse position than it would have been in if such Borrower had not
been required to make such deduction or withholding. Nothing contained in this
Section 2.14 shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it deems proper nor oblige any Lender to claim any
tax credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender to do anything that would
prejudice its ability to benefit from any other credits, reliefs, remissions or
repayments to which it may be entitled.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff or otherwise) on account of the Revolving Credit Advances owing
to it or the Discounted Notes purchased by it (other than pursuant to Section
2.02(c), 2.07(c), 2.11, 2.12, 2.14 or 9.04) in excess of its Pro Rata Share of
payments on account of the Revolving Credit Advances or the Discounted Notes
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them or
the Discounted Notes purchased by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery, together with an
amount equal to such Lender's Pro Rata Share (according to the proportion of (a)
the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
applicable law, exercise all of its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
SECTION 2.16. Defaulting Lenders. If, at any time, (a) any
Lender shall be a Defaulting Lender, (b) such Defaulting Lender shall owe a
Defaulted Advance to any Borrower and (c) such Borrower shall be required to
make any payment under this Agreement or under any Note to or for the account of
such Defaulting Lender, then such Borrower may, so long as no Default under
Section
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43
6.01(a) or 6.01(e) or Event of Default shall have occurred and be continuing and
to the fullest extent permitted by applicable law, set off and otherwise apply
the obligation of such Borrower to make such payment to or for the account of
such Defaulting Lender against the obligation of such Defaulting Lender to make
such Defaulted Advance. If, on any date, any Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by such Borrower shall
constitute for all purposes of this Agreement and the Notes an Advance or the
purchase of a Discounted Note by such Defaulting Lender on the date such
Defaulted Advance was originally required to have been made pursuant to Sections
2.01 and 2.02 or 2.03. Such Advance or such Discounted Note shall be (i) in the
case of a Revolving Credit Borrowing comprised of Discounted Notes, deemed to be
the purchase from Holdings by such Defaulting Lender of a Discounted Note having
the same Maturity Date, and with a Discount based on the same Eurocurrency Rate,
as all other outstanding Discounted Notes comprising part of such Revolving
Credit Borrowing and (ii) in all other cases, a Base Rate Advance, even if the
other Advances comprising such Borrowing shall be Eurocurrency Rate Advances,
Fixed Rate Advances or LIBO Rate Advances on the date such Advance is deemed to
be made pursuant to this Section 2.16, and, in any such case, shall be
considered for all purposes of this Agreement to comprise part of the Borrowing
in connection with which such Defaulted Advance was originally required to have
been made pursuant to Sections 2.01 and 2.02 or 2.03. Each Borrower shall
promptly notify the Administrative Agent at any time such Borrower exercises its
right of setoff pursuant to this Section 2.16 and shall set forth in such notice
(A) the name of the Defaulting Lender and the Defaulted Advance required to be
made by such Defaulting Lender and (B) the amount set off and otherwise applied
in respect of such Defaulted Advance pursuant to this Section 2.16.
SECTION 2.17. Extension of Termination Date. (a) At least 60
days but not more than 90 days prior to any Anniversary Date but in any event
not more than twice prior to the Termination Date, the Company, by written
notice to the Administrative Agent, may request an extension of the Termination
Date in effect at such time by one calendar year from its then scheduled
expiration. The Administrative Agent shall promptly notify each Lender of such
request, and each Lender shall in turn, in its sole discretion, within 15 days
of such notice but not later than 45 days prior to such next Anniversary Date,
notify the Administrative Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify the Administrative
Agent in writing of its consent to, or refusal of, any such request for
extension of the Termination Date at least 45 days prior to the next Anniversary
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Administrative Agent shall notify the Company not later than
40 days prior to such next Anniversary Date of the decision of the Lenders
regarding the Company's request for an extension of the Termination Date. It is
understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Company for an extension of the Termination
Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.17 and upon
fulfillment of the applicable conditions set forth in Article III, the
Termination Date in effect at such time shall, effective as at such next
Anniversary Date (the "Extension Date"), be extended for one calendar year. If
less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, the Termination Date in
effect at such time shall, upon fulfillment of the applicable conditions set
forth in Article III, effective as at the applicable Extension Date, be extended
as to those Lenders that so consented (each, a "Consenting Lender") but shall
not be extended as to any other Lender (each, a "Non-Consenting Lender");
provided that at least a majority in interest of the aggregate Commitments at
such time (after giving effect to any
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44
assumptions of the Commitments of Non-Consenting Lenders in accordance with
subsection (c) of this Section 2.17) consent in writing to any such request for
extension of the Termination Date. To the extent that the Termination Date is
not extended as to any Lender pursuant to this Section 2.17 and the Commitment
of such Lender is not assumed in accordance with subsection (c) of this Section
2.17 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Company, such
Lender or any other Person; provided that such Non-Consenting Lender's rights
under Sections 2.11, 2.14 and 9.04, and its obligations under Section 8.05,
shall survive the Termination Date for such Lender as to matters occurring prior
to such Extension Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.17, the Company may arrange
for one or more Consenting Lenders or other Eligible Assignees to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the rights and obligations of such Non-Consenting Lender under this
Agreement thereafter arising (each Eligible Assignee assuming the Commitment of
one or more Non-Consenting Lenders pursuant to this Section 2.17 being an
"Assuming Lender"), without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender shall in no event be less than $20,000,000 unless the
amount of the Commitment of such Non-Consenting Lender is less than $20,000,000,
in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender the aggregate principal amount of,
and any interest accrued and unpaid to the effective date of such
assumption on, the outstanding Advances, if any, of such Non-Consenting
Lender;
(ii) any such Consenting Lender or Assuming Lender shall have
purchased from such Non-Consenting Lender all Discounted Notes owing to
such Non-Consenting Lender, if any, at a purchase price equal to the
aggregate Accreted Value thereof to the effective date of such
assumption;
(iii) any accrued and unpaid Facility Fees owing to such
Non-Consenting Lender as of the effective date of such assumption, and
all other accrued and unpaid amounts owing to such Non-Consenting
Lender under this Agreement and the Notes as of the effective date of
such assumption, shall have been paid to such Non-Consenting Lender by
the Borrower or such Consenting Lender or Assuming Lender; and
(iv) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) shall
have been paid.
At least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Company and the Administrative Agent
an Assumption Agreement, duly executed by such Assuming Lender, such
Non-Consenting Lender, the Company and the Administrative Agent, (B) each such
Consenting Lender, if any, shall have delivered written confirmation
satisfactory to the Company and the Administrative Agent as to any increase in
the amount of its Commitment resulting from its assumption of one or more
Commitments of the Non-Consenting Lenders and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.17(c) shall have delivered to the
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45
Administrative Agent, to be held in escrow on behalf of such Non-Consenting
Lender until the payment in full of all amounts owing to such Non-Consenting
Lender under clauses (i) through (iii) of this Section 2.17, any Note or Notes
held by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i) through (iv) of this Section 2.17(c), each
such Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for the applicable Non-Consenting Lender(s) under this Agreement and
shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of any of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If a majority in interest of the Lenders (after giving
effect to any assumptions pursuant to subsection (c) of this Section 2.17)
consent in writing to a requested extension (whether by execution and delivery
of an Assumption Agreement or otherwise) not later than one Business Day prior
to an Extension Date, the Administrative Agent shall so notify the Company, and,
upon fulfillment of the applicable conditions set forth in Article III, the
Termination Date then in effect shall be extended for an additional one-year
period, as described in subsection (a) of this Section 2.17, and all references
in this Agreement and in the Notes to the "Termination Date" shall, with respect
to each Consenting Lender and each Assuming Lender for such Extension Date,
refer to the Termination Date as so extended. Promptly following each Extension
Date, the Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
(e) Within ten Business Days after each Extension Date, each
Borrower shall, at its own expense, execute and deliver to the Administrative
Agent Revolving Credit Notes payable to the order of each Consenting Lender (in
the case of each such Consenting Lender, in exchange for the Revolving Credit
Note surrendered by such Consenting Lender to the Administrative Agent), if any,
and each Assuming Lender, if any, in each case dated such Extension Date and in
substantially the form of Exhibit A-1 hereto and in an amount equal to the
Commitment of such Consenting Lender or Assuming Lender, as the case may be,
after giving effect to such extension of the Termination Date. The
Administrative Agent, upon receipt of such Revolving Credit Notes, shall
promptly deliver such Revolving Credit Notes to the respective Consenting
Lenders and Assuming Lenders.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances
and the Discounted Notes shall be available (and each Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of such Borrower
and its Subsidiaries not otherwise prohibited under the terms of this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
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46
(a) No event or development shall have occurred or failed to
occur, and no action shall have been taken or failed to have been
taken, by or on behalf of any Borrower or any of its Subsidiaries that,
either individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect since December 31, 1995. No
fact or circumstance shall be known by any Borrower that, either
individually or in the aggregate, has had or could reasonably be
expected to have (so far as such Borrower can reasonably foresee) a
Material Adverse Effect since December 31, 1995.
(b) All governmental and other third party consents and
approvals necessary in connection with this Agreement and the Notes and
with the transactions contemplated hereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Lenders) and shall remain in effect; and no law or
regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions on this Agreement or any Note or upon any of the
transactions contemplated hereby.
(c) The Company shall have notified each Lender and the
Administrative Agent in writing as to the proposed Effective Date.
(d) All accrued fees and, to the extent invoices have been
delivered to the Company on or prior to such date, all accrued expenses
of the Administrative Agent and the Lenders (including, without
limitation, all accrued fees and expenses of counsel for the
Administrative Agent, the Documentation Agent and the Syndication
Agent) shall have been paid.
(e) All of the amounts owing by any Borrower or any of its
Subsidiaries under the Existing Credit Agreement shall have been, or
concurrently with any initial Borrowing made on the Effective Date
shall be, paid in full, and all commitments of the lenders thereunder
shall have been, or concurrently with any initial Borrowing made on the
Effective Date shall be, terminated in accordance with the terms of
such Agreement.
(f) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate of the Company, on behalf of itself and
each other Borrower, signed by a duly authorized officer of the
Company, dated such date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, as
though made on and as of such date;
(ii) No event has occurred and is continuing, or
shall occur as a result of the occurrence of the Effective
Date, that constitutes a Default; and
(iii) All of the amounts owing by any Borrower or any
of its Subsidiaries under the Existing Credit Agreement shall
have been, or concurrently with any initial Borrowing made on
the Effective Date shall be, paid in full, and all commitments
of the lenders thereunder shall have been, or concurrently
with any initial Borrowing made on the Effective Date shall
be, terminated in accordance with the terms of such Agreement.
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47
(g) The Administrative Agent shall have received on or before
the Effective Date each of the following, dated the Effective Date and
in form and substance satisfactory to the Administrative Agent:
(i) The Revolving Credit Notes of each of the
Borrowers to the order of each of the Lenders, respectively.
(ii) A certificate of the Secretary or an Assistant
Secretary (or person performing similar functions) of each of
the Borrowers certifying (A) appropriate resolutions of the
board of directors (or persons performing similar functions)
of such Borrower authorizing Borrowings under this Agreement
and its Notes, and all documents evidencing other necessary
corporate (or equivalent) action and governmental approvals,
if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws
(or the equivalent thereof) of such Borrower (copies of which
shall be attached thereto) and (C) the names and true
signatures of the officers of such Borrower authorized to sign
this Agreement and its Notes and the other documents to be
delivered by such Borrower hereunder.
(iii) A copy of the charter or articles (or other
similar organizational documents) of each Borrower, certified
(as of a date reasonably near the Effective Date) as being a
true and complete copy thereof by the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction
of organization of such Borrower or, if such certificate is
not provided in the jurisdiction of organization of any
Borrower, certified (as of a date reasonably near the
Effective Date) as being a true and complete copy thereof by a
duly authorized officer of such Borrower.
(iv) A copy of a certificate of the Secretary of
State (or other appropriate Governmental Authority) of the
jurisdiction of organization of such Borrower, dated
reasonably near the Effective Date, certifying that such
Borrower is duly organized and in good standing (or the
equivalent thereof) under the laws of the jurisdiction of its
organization.
(v) Favorable opinions of (A) Miles & Stockbridge, a
Professional Corporation, counsel for the Borrowers, in
substantially the form of Exhibit E-1 hereto, (B) Winthrop,
Stimson, Putnam & Roberts, special New York counsel for the
Borrowers, in substantially the form of Exhibit E-2 hereto,
and (C) each of McKenna & Co., special United Kingdom counsel
for B&D, Trenite van Doorne, special Kingdom of the
Netherlands counsel for Holdings International and B&D
Nederland, Doser Amereller Noack, special Republic of Germany
counsel for B&D Germany, Jeantet Et Associates, special
Republic of France counsel for B&D France, and Homberger,
Rachtsanwalte, special Swiss Confederation counsel for Emhart,
in each case in form and substance satisfactory to the
Administrative Agent (which form shall be substantially
similar to Exhibit E-3 hereto) and, in each of the foregoing
cases, addressing such other matters as the Administrative
Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, the Documentation Agent
and the Syndication Agent.
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48
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an initial
Advance to each Designated Subsidiary following its designation as a Borrower
hereunder pursuant to Section 9.08 on the occasion of the initial Borrowing
thereby is subject to the Administrative Agent's receipt on or before the date
of such initial Borrowing of each of the following, in form and substance
satisfactory to the Administrative Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit F hereto.
(b) A Revolving Credit Note of such Designated Subsidiary to
the order of each of the Lenders, respectively.
(c) A certificate of the Secretary or an Assistant Secretary
(or person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing
other necessary corporate (or equivalent) action and governmental
approvals, if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), (B) copies of the by-laws (or the
equivalent thereof) of such Designated Subsidiary (copies of which
shall be attached thereto) and (C) the names and true signatures of the
officers of such Designated Subsidiary authorized to sign the
Designation Letter of such Designated Subsidiary and its Notes and the
other documents to be delivered by such Designated Subsidiary
hereunder.
(d) A copy of the charter or articles (or other similar
organizational document) of such Designated Subsidiary, certified (as
of a date reasonably near the date of such Borrowing) as being a true
and complete copy thereof by the Secretary of State (or other
appropriate Governmental Authority) of the jurisdiction of organization
of such Designated Subsidiary or, if such certificate is not provided
in the jurisdiction of organization of such Designated Subsidiary,
certified (as of a date reasonably near the date of such Borrowing) as
being a true and complete copy thereof by a duly authorized officer of
such Designated Subsidiary.
(e) A copy of a certificate of the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction of
organization of such Designated Subsidiary, dated reasonably near the
date of such Borrowing, certifying that such Designated Subsidiary is
duly organized and in good standing (or the equivalent thereof) under
the laws of the jurisdiction of its organization.
(f) A certificate signed by a duly authorized officer of such
Designated Subsidiary, dated as of the date of such Borrowing,
certifying that such Designated Subsidiary has obtained all
authorizations, consents, approvals (including, without limitation,
exchange control approvals) and licenses of any Governmental Authority
or other third party necessary for such Designated Subsidiary to
execute and deliver its Designation Letter and its Notes and to perform
its obligations under this Agreement or any of its Notes.
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49
(g) Evidence of acceptance by the Company of its appointment
as the process agent of such Designated Subsidiary in accordance with
Section 9.13(a), in substantially the form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Designated
Subsidiary reasonably acceptable to the Administrative Agent, dated the
date of such Borrowing, in substantially the form of Exhibit E-3 hereto
(subject to the assumptions, qualifications and limitations customary
for legal opinions in the jurisdiction for which such opinion is
delivered), and addressing such other matters as any Lender through the
Administrative Agent may reasonably request.
(i) Such other documents, opinions and other information as
any Lender, through the Administrative Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance, or
to purchase a Discounted Note, as the case may be, on the occasion of each
Revolving Credit Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of Revolving Credit Borrowing and the acceptance by the
Borrower that requested such Revolving Credit Borrowing of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Revolving Credit Borrowing such
statements are true):
(i) Except in the case of a Refinancing Borrowing, the
representations and warranties contained in Section 4.01 (and, if such
Revolving Credit Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter) are correct on and as
of the date of such Revolving Credit Borrowing, before and after giving
effect to such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(iii) In the case of a Revolving Credit Borrowing consisting
of Discounted Notes (including, without limitation, a Refinancing
Borrowing), the Administrative Agent shall have received an
appropriately completed and duly executed Master Discounted Note
evidencing such Revolving Credit Borrowing;
and (b) the Administrative Agent shall have received such other documents,
opinions and other information as any Lender, through the Administrative Agent,
may reasonably request. Nothing in this Section 3.03 shall be construed to
require any Borrower to satisfy the conditions set forth herein solely upon the
Conversion of one or more Borrowings in accordance with the terms of this
Agreement.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Administrative Agent shall have received the
written
162654.6/NYL3
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50
confirmatory Notice of Competitive Bid Borrowing with respect thereto and (b) on
the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower that requested such Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(i) The representations and warranties contained in Section
4.01 (and, if such Competitive Bid Borrowing shall have been requested
by a Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Letter) are correct
on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date; and
(ii) No event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.05. Conditions Precedent to Each Extension Date. The
obligation of each Consenting Lender and each Assuming Lender to extend the
Termination Date pursuant to Section 2.17 is subject to the conditions precedent
that (a) the Administrative Agent shall have accepted all of the Assumption
Agreements of the Assuming Lenders and received all of the written confirmations
of increases in the Commitments of the Consenting Lenders for such Extension
Date, and all of the Non-Consenting Lenders shall have received all of the
amounts required to have been paid to them under Section 2.17(c) on or prior to
such Extension Date, and (b) on such Extension Date the following statements
shall be true (and a duly authorized officer of the Company shall certify the
completeness and accuracy of such statements to the Administrative Agent and the
Lenders on and as of such Extension Date):
(i) No event or development has occurred or failed to occur,
and no action has been taken or failed to have been taken, by or on
behalf of any Borrower or any of its Subsidiaries that, either
individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect since December 31, 1995. No
fact or circumstance is known by any Borrower that, either individually
or in the aggregate, has had or could reasonably be expected to have
(so far as such Borrower can reasonably foresee) a Material Adverse
Effect since December 31, 1995;
(ii) The representations and warranties contained in Section
4.01 are correct on and as of such Extension Date, before and after
giving effect to such Extension Date; and
(iii) No event has occurred and is continuing, or would result
from the occurrence of such Extension Date, that constitutes a Default.
SECTION 3.06. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received
162654.6/NYL3
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51
notice from such Lender prior to the date that the Company, by notice to the
Lenders, designates as the proposed Effective Date, specifying its objection
thereto. The Administrative Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Borrower and each of its Significant Subsidiaries (i)
are Persons duly organized, validly existing and, to the extent such
concept is applicable in the jurisdiction of organization of such
Borrower or such Subsidiary, in good standing under the laws of the
jurisdictions of their respective organization, (ii) are duly qualified
and, to the extent such concept is applicable in such jurisdiction, in
good standing as foreign corporations (or the equivalent thereof) in
each other jurisdiction in which they own or lease property or in which
the conduct of their respective businesses requires them to so qualify
or be licensed, except where the failure to so qualify or be licensed,
either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all
requisite power and authority to own or lease and operate their
properties and to carry on their respective businesses as now conducted
and as proposed to be conducted.
(b) The execution, delivery and performance by each Borrower
of this Agreement and its Notes, and the consummation of the
transactions contemplated hereby, are within such Borrower's powers,
have been duly authorized by all necessary action (including, without
limitation, all necessary stockholders' action), and do not contravene
(i) such Borrower's charter or by-laws (or similar organizational
documents), (ii) any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award or (iii) any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting such Borrower, any of its
Subsidiaries or any of their properties or assets.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or any other third
party is required for the due execution, delivery and performance by
any Borrower of this Agreement or any of its Notes, or for the
consummation of any of the transactions contemplated hereby, except as
have been obtained or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by each
Borrower intended to be a party thereto. This Agreement is, and each of
the Notes when delivered hereunder will be, the legal, valid and
binding obligation of each Borrower intended to be a party thereto,
enforceable against such Borrower in accordance with their respective
terms, except to the extent that the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally or by general
principles of equity.
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52
(e) The most recently completed annual Financial Statements of
the Company and its Subsidiaries, copies of which have been furnished
to each Lender, fairly present the consolidated financial condition of
the Company and its Subsidiaries as at the date of such Financial
Statements and the consolidated results of operations of the Company
and its Subsidiaries for the fiscal year of the Company ended on the
date of such Financial Statements, all in accordance with generally
accepted accounting principles in effect at the time such Financial
Statements were prepared.
(f) All information, exhibits and reports (other than
financial statements, analysts' reports, projections and assumptions)
furnished by or on behalf of each Borrower to any Lender in connection
with the negotiation of, or pursuant to the terms of, this Agreement or
any of its Notes do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
contained therein not misleading, in light of the circumstances under
which any such statements were made.
(g) There is no action, suit, investigation, litigation or
proceeding (including, without limitation, any Environmental Action)
against or in any other way affecting any Borrower or any of its
Subsidiaries or any of its respective properties or businesses pending
or, to the best knowledge of such Borrower or any of its Subsidiaries,
threatened before any court, Governmental Authority or arbitrator that
(i) either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (ii) purports to
adversely affect the legality, validity or enforceability of this
Agreement or any of its Notes or the consummation of the transactions
contemplated hereby.
(h) None of the Borrowers is engaged in the business of
extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance or any
Discounted Note will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying
margin stock.
(i) Neither any Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined
in the Investment Company Act of 1940, as amended). Neither the making
of any Advances nor the purchase of any Discounted Notes nor the
application of the proceeds or the repayment or repurchase thereof by
any Borrower, nor the consummation of any of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(j) No ERISA Event has occurred or could reasonably be
expected to occur with respect to any Plan that when aggregated with
any and all other ERISA Events that have occurred or could reasonably
be expected to occur with respect to any Plan, has resulted or could
reasonably be expected to result in liability of any Borrower or any
ERISA Affiliate that exceeds $20,000,000 (or the Equivalent thereof in
one or more Foreign Currencies) in the aggregate.
(k) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 60 percent, and there has been no material adverse
change in the funding status of any such Plan since such date;
162654.6/NYL3
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53
provided, however, that no breach of this Section 4.01(k) shall be
deemed to have occurred unless the Insufficiency with respect to any
such Plan exceeds $5,000,000 (or the Equivalent thereof in one or more
Foreign Currencies).
(l) Neither any Borrower nor any ERISA Affiliate (i) has
incurred or could reasonably be expected to incur any Withdrawal
Liability with respect to any Multiemployer Plan or (ii) has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA; and, to the knowledge of any Borrower, no such
Multiemployer Plan could reasonably be expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, that has
resulted or could reasonably be expected to result in a liability of
any Borrower or any ERISA Affiliate that exceeds $20,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) in the aggregate
with respect to clauses (i) and (ii) of this Section 4.01(l).
(m) Except as set forth on Schedule 4.01 hereto, (i) the
operations and properties of each Borrower and each of its Subsidiaries
comply with all applicable Environmental Laws and Environmental
Permits, except to the extent the failure to so comply, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; (ii) all Environmental Actions against
any Borrower or any of its Subsidiaries for noncompliance with such
Environmental Laws and Environmental Permits that have been resolved
have been resolved without any ongoing obligations or costs that,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and (iii) to the best knowledge of
any Borrower or any of its Subsidiaries, no circumstances exist that
(A) could form the basis of an Environmental Action against such
Borrower or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect or (B) could cause any of their respective properties to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(n) Except as set forth on Schedule 4.01 hereto, there have
been no releases, discharges or disposals of Hazardous Materials on any
property owned or operated by any Borrower or any of its Subsidiaries
or, to the best knowledge of such Borrower or any such Subsidiary, on
any property formerly owned or operated by any Borrower or any of its
Subsidiaries that (taking into account, among other things, the
reasonable likelihood of an adverse determination and the availability
of contributions from other potentially responsible parties), either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(o) Except as set forth on Schedule 4.01 hereto, neither any
Borrower nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge
or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
owned or operated by any Borrower or any of its Subsidiaries have been
disposed of in a manner
162654.6/NYL3
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54
that, either individually or in the aggregate, could not reasonably be
expected (taking into account, among other things, the reasonably
likelihood of an adverse determination and the availability of
contributions from other potentially responsible parties) to have a
Material Adverse Effect.
(p) The Advances, the Discounted Notes and all related
obligations of each Borrower under this Agreement and its Notes rank
pari passu with all other unsecured obligations of such Borrower that
are not, by their terms, expressly subordinate to such other
obligations of such Borrower.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance
or any Discounted Note shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance
with ERISA and Environmental Laws, except where, and for so long as,
the failure to so comply (i) has been excused or waived under
applicable law or (ii) either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Comply,
and cause each of its Subsidiaries to comply, with the terms of all of
its contracts, loan agreements, indentures, mortgages, deeds of trust,
leases and other agreements and instruments, the violation or breach of
which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property and
assets; provided, however, that neither any Borrower nor any of its
Subsidiaries shall be required to pay or discharge (A) any taxes,
assessments, reassessments, charges, levies or claims that, either
individually or in the aggregate, do not exceed $15,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) at any time or
(B) any such tax, assessment, reassessment, charge, levy or claim that
is being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained in accordance with
generally accepted accounting principles in effect from time to time,
unless and until, in any of the foregoing cases, any Lien resulting
therefrom attaches to its property and enforcement, collection, levy or
foreclosure proceedings shall have been commenced and remain unstayed
in respect thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, (i) insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
of similar size and owning similar properties in the same general areas
in which such Borrower or such Subsidiary operates and (ii) additional
insurance to the extent required under applicable
162654.6/NYL3
<PAGE>
55
law, rule, regulation or order unless, in either case, the failure to
maintain such insurance, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(d) Preservation of Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory), licenses and franchises (whether
arising as a matter of contract or under applicable law or regulation);
provided, however, that any Borrower or any of its Subsidiaries may
consummate any transaction otherwise permitted under Section 5.02(b);
and provided further that neither any Borrower nor any of its
Subsidiaries shall be required to preserve (i) any Subsidiary of the
Company that is not a Borrower or (ii) any right, license or franchise
if management of such Borrower shall determine in good faith that the
preservation thereof is no longer desirable in the conduct of the
business or the continued operations of such Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to such Borrower, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, during normal business hours and upon reasonable notice, permit
the Administrative Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account, and visit and inspect the
properties, of any Borrower or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of any Borrower or any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
material properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Use of Proceeds. Use all of the proceeds of the Advances
and the Discounted Notes solely for general corporate purposes of such
Borrower and its Subsidiaries not otherwise prohibited under the terms
of this Agreement.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, except for transactions between or among the
Company and its Subsidiaries or between or among Subsidiaries of the
Company not otherwise prohibited under this Agreement that, either
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
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56
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 50
days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, commencing with the fiscal
quarter of the Company ending March 31, 1996, the Financial
Statements of the Company and its Subsidiaries as of the end
of such fiscal quarter, duly certified by the chief financial
officer or the treasurer of the Company as (A) having been
prepared in accordance with generally accepted accounting
principles in effect at the time such Financial Statements
were prepared and (B) fairly presenting the consolidated
financial condition of the Company and its Subsidiaries as at
the last day of such fiscal quarter and the consolidated
results of operations of the Company and its Subsidiaries for
such period;
(ii) as soon as available and in any event within 95
days after the end of each fiscal year of the Company,
commencing with the fiscal year of the Company ending December
31, 1996, a copy of the annual report, prepared in the manner
required under Form 10-K, for such fiscal year for the Company
and its Subsidiaries containing the Financial Statements of
the Company and its Subsidiaries as of the end of such fiscal
year, in each case accompanied by an opinion of Ernst & Young
or other independent certified public accountants of
nationally recognized standing in the United States and
reasonably acceptable to the Administrative Agent that is
unqualified as to going concern and scope of audit and is
otherwise in scope and substance acceptable to the Required
Lenders, together with a certificate of such accounting firm
addressed to the Administrative Agent and the Lenders stating
that in the course of the regular audit of the business of the
Company and its Subsidiaries, which audit was conducted by
such accounting firm in accordance with generally accepted
auditing standards, nothing has come to the attention of such
accountants that causes them to believe that the Company has
failed to comply with the covenants set forth in Section 5.03;
(iii) as soon as available after the end of each
fiscal year of each Foreign Borrower, a balance sheet of such
Foreign Borrower as of the end of such fiscal year and the
related statement of income of such Foreign Borrower for such
fiscal year and such other statements for such fiscal year as
are required to be included in the statutory report of the
jurisdiction in which such Foreign Borrower resides, in each
case prepared in accordance with historical convention and
with generally accepted accounting principles prevailing in
such jurisdiction at the time such financial statements are
delivered;
(iv) simultaneously with each delivery of the
Financial Statements referred to in clauses (i) and (ii) of
this Section 5.01(j), (A) a certificate of the chief financial
officer or the treasurer of the Company (1) stating that no
Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature
thereof and the action that the Company has taken and/or
proposes to take with respect thereto and (2) setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with each of the covenants set forth in Section
5.03 and (B) in the event of any change in the generally
accepted accounting principles used in the preparation of such
Financial Statements from those used in the preparation of the
1995 Audited Financial Statements, a statement of
reconciliation, if and to the extent necessary for the
determination of
162654.6/NYL3
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57
compliance with each of the covenants set forth in Section
5.03, conforming such Financial Statements to generally
accepted accounting principles consistent with those applied
by the Company in the preparation of the 1995 Audited
Financial Statements;
(v) as soon as possible and in any event within five
days after any Responsible Officer knows or has reason to know
of the occurrence of each Default, or the occurrence or
nonoccurrence of any event, development or circumstance that,
either individually or in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect, a
statement of such Responsible Officer setting forth the
details of such Default or such event, development or
circumstance, as the case may be, and the action that such
Borrower has taken and/or proposes to take with respect
thereto;
(vi) promptly upon receipt thereof, copies of any
report on material weaknesses in the financial controls of the
Company and its Subsidiaries, taken as a whole, prepared by
any independent certified public accountants of the Company in
connection with their annual audit;
(vii) promptly after the sending or filing thereof,
copies of all reports that the Company sends to its
securityholders, and copies of all reports and registration
statements (other than registration statements filed on Form
S-8 or otherwise relating to securities being offered and sold
under, or interests in, employee benefit plans), if any, that
any Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(viii) promptly after the commencement thereof,
notice of all actions, suits, investigations, litigations and
proceedings before any court, Governmental Authority or
arbitrator against or in any other way affecting any Borrower
or any of its Subsidiaries or any of their respective
properties or businesses of the type described in Section
4.01(g);
(ix) promptly and in any event within five Business
Days after becoming aware thereof, notice of any change in the
rating assigned by any nationally recognized rating agency to
any securities issued by any Borrower or any of its
Subsidiaries and the effective date of such change, together
with a copy of such notice if available at such time;
(x) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against any
Borrower or any of its Subsidiaries, or of any noncompliance
by any Borrower or any of its Subsidiaries with any
Environmental Law or any Environmental Permit, that (A) either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (B) could cause any
property of such Borrower or such Subsidiary to be subject to
any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and
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(xi) such other information respecting the
businesses, assets, liabilities, financial condition, results
of operations or business prospects of any Borrower or any of
its Subsidiaries as any Lender, through the Administrative
Agent, may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance or
any Discounted Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each of the Borrowers will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties and assets, whether now owned or
hereafter acquired, or assign as security, or permit any of its
Subsidiaries to assign as security, any right to receive income
therefrom, other than:
(i) Permitted Liens;
(ii) Liens existing on the date of this Agreement and
described on Schedule 5.02(a) hereto securing obligations of
any Borrower or any Subsidiary existing on the date of this
Agreement and also described on such Schedule;
(iii) purchase money Liens upon or in one or more
tangible assets acquired or held by any Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such tangible assets or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such tangible
assets so long as such Liens are incurred within 90 days of
the date of acquisition of such tangible assets, or Liens
existing on any such tangible asset at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such tangible assets); provided,
however, that no such Lien shall extend to or cover any
property or assets of any character other than the tangible
assets being acquired, constructed or improved; and provided
further that any Indebtedness secured by such Liens shall
otherwise be permitted under the terms of this Agreement;
(iv) Liens on property and assets of a Person
existing at the time such Person is merged into or
consolidated with any Borrower or any of its Subsidiaries or
becomes a Subsidiary of any Borrower; provided that any such
Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to or cover (A)
any property or assets other than the property and assets of
the Person being merged into or consolidated with such
Borrower or such Subsidiary or being acquired by such Borrower
or such Subsidiary, as the case may be, or (B) any obligations
of any Person other than those obligations that were secured
by such property and assets at the time of such merger,
consolidation or acquisition; and provided further that any
Indebtedness secured by such Liens shall otherwise be
permitted under the terms of this Agreement;
(v) Liens on any property or assets of any Subsidiary
of the Company securing Indebtedness owed to the Company or
any of its other Subsidiaries;
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(vi) Liens securing reimbursement obligations under
commercial letters of credit incurred in the ordinary course
of business; provided that any such Liens shall cover only the
goods, or documents of title evidencing goods, that are
purchased in the transaction for which such letter of credit
was issued and the products and proceeds thereof;
(vii) Liens arising out of judgments or awards that
do not constitute an Event of Default under Section 6.01(f) or
6.01(g) and in respect of which any Borrower or any of its
Subsidiaries subject thereto shall be prosecuting an appeal or
proceedings for review in good faith and, pending such appeal
or proceedings, shall have secured a subsisting stay of
execution within 30 days of such judgment or award and shall
be maintaining appropriate reserves, in accordance with
generally accepted accounting principles in effect from time
to time, with respect to any such judgment or award;
(viii) Liens on cash, certificates of deposit or
other similar bank obligations securing Indebtedness (which
Indebtedness may be in a different currency from such cash,
certificates of deposit or other bank obligations) in an
amount substantially equal in value (determined at the time
such Lien is created) to such cash, certificates of deposit or
other bank obligations, as the case may be;
(ix) Environmental Liens securing damages and
liabilities not to exceed an aggregate amount of $40,000,000
(or the Equivalent thereof in one or more Foreign Currencies)
for the Company and its Subsidiaries at any time;
(x) Liens not otherwise permitted under this Section
5.02(a) securing obligations in an aggregate amount not to
exceed $150,000,000 (or the Equivalent thereof in one or more
Foreign Currencies) for the Company and its Subsidiaries at
any time; and
(xi) the extension, renewal, replacement or
refinancing of any Lien otherwise permitted under any of
clauses (ii) through (iv) of this Section 5.02(a) upon or in
the same property and assets theretofore subject thereto;
provided that no such extension, renewal, replacement or
refinancing shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed,
replaced or refinanced; and provided further that (A) any
obligation secured by such Liens shall otherwise be permitted
under the terms of this Agreement and (B) both immediately
before and immediately after giving effect to such Lien, no
Default shall have occurred and be continuing.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its property and assets (whether now owned or hereafter acquired) to,
any Person, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of the Company that is not a
Borrower may merge into or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to, any other
Person so long as, if such Person is a Borrower, such Person
is the surviving entity; and
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(ii) any Borrower may merge with any other Person
(including, without limitation, any other Borrower or any of
its Subsidiaries) so long as (A) if the Company is a party to
such merger or consolidation, the Company is the surviving
entity or (B) if any other Borrower is a party to such merger
or consolidation, either (1) the surviving entity shall be
such Borrower or (2) the surviving entity (w) shall be a
Substantially Owned Subsidiary of the Company, (x) shall
succeed, by an agreement or operation of law, to all of the
businesses and operations of such Borrower and shall assume,
in an assumption agreement in form and substance satisfactory
to the Administrative Agent, all of the rights and obligations
of such Borrower under this Agreement and the Notes, (y) shall
deliver to the Administrative Agent all of the certificates,
opinions and other documents described in clauses (b) through
(h) of Section 3.02 with respect to such surviving entity, in
each case in form and substance satisfactory to the
Administrative Agent, and such other documents, opinions and
other information as any Lender, through the Administrative
Agent, may reasonably request and (z) shall cause the Company
to deliver to the Administrative Agent written confirmation of
its obligations under Section 7.01 with respect to such
surviving entity;
provided, in each of the foregoing cases, that no Default shall have
occurred and be continuing at the time of such merger, consolidation,
conveyance, transfer, lease or disposition, or shall occur as a result
thereof. Notwithstanding any of the foregoing provisions of this
Section 5.02(b), neither any Borrower nor any of its Subsidiaries shall
sell, convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions and whether through the
disposition of shares of capital stock or other property or assets) (A)
a Substantial Portion of the consumer and home improvement products
segment of the Company and its Subsidiaries (the parameters of such
segment being the same as those used for purposes of the Annual Report
of the Company for the fiscal year of the Company ended December 31,
1995, as filed with the Securities and Exchange Commission on Form
10-K) or (B) all or substantially all of the power tool business
engaged in by the Company and its Subsidiaries on the date of this
Agreement.
(c) Change in Nature of Business. Engage in any business other
than the businesses engaged in by the Company and its Subsidiaries on
the date of this Agreement and other businesses and activities that are
substantially similar, related or incidental thereto.
(d) Fiscal Year. Make or permit any change in the fiscal year
of the Company.
(e) Substance Storage and Disposal. Permit any Hazardous
Materials to be generated, used, treated, handled or stored at, or
transported to or from, any property owned or operated by any Borrower
or any of its Subsidiaries in any manner that could result in the
incurrence by any Borrower or any of its Subsidiaries of remedial
obligations or liabilities under any applicable Environmental Law,
except (a) as set forth on Schedule 4.01 hereto and (b) for substances
(i) to be used in the business of such Borrower or such Subsidiary
pending and during such use and (ii) that are generated or used in the
business of such Borrower or such Subsidiary pending their disposal.
SECTION 5.03. Financial Covenants. So long as any Advance or
any Discounted Note shall remain unpaid or any Lender shall have any Commitment
hereunder, the Company will:
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(a) Leverage Ratio. Maintain a Leverage Ratio as of the last
day of each of its fiscal quarters of not greater than 2.00 to 1.
(b) Cash Flow Coverage Ratio. Maintain a Cash Flow Coverage
Ratio as of the last day of each of its fiscal quarters of not less
than 2.50 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail (i) to pay any principal of any
Advance, or any portion of the Face Amount of any Discounted Note, when
the same becomes due and payable or (ii) to pay any interest on any
Advance or to make any payment of fees or other amounts payable under
this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein
or by any Borrower (or any of its officers) in connection with this
Agreement (including, without limitation, in the Designation Letter of
any Borrower) shall prove to have been incorrect or misleading in any
material respect when made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(a), (d), (h), (i)
or (j)(v), or 5.02(a), (b) or (d), or 5.03 to be performed or observed
by such Borrower or (ii) any other term, covenant or agreement
contained in this Agreement to be performed or observed by such
Borrower if such failure shall remain unremedied for 30 days after the
earlier of (A) the first date on which a Responsible Officer of any
Borrower knows or has reason to know of such failure and (B) the date
on which written notice thereof shall have been given to the Company or
the applicable Borrower by the Administrative Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay
any principal of or any premium or interest on any Indebtedness that is
outstanding in a principal amount of or, in the case of any Hedge
Agreement, having an Agreement Value of, at least $20,000,000 (or the
Equivalent thereof in one or more Foreign Currencies), either
individually or in the aggregate (but excluding Indebtedness
outstanding hereunder), of such Borrower or such Subsidiary, as the
case may be, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid or redeemed
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62
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; provided, however, that
the required redemption or repurchase of any such Indebtedness
comprised of Mandatorily Redeemable Stock of BFS shall not constitute
an Event of Default under this Section 6.01(d) if, and for so long as,
the recourse of the holders of such Mandatorily Redeemable Stock is
limited solely to the property and assets of BFS; or
(e) Any Borrower or any Significant Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Borrower or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property and assets) shall
occur; or any Borrower or any Significant Subsidiary shall take any
action to authorize any of the actions set forth above in this Section
6.01(e); or
(f) One or more judgments or orders for the payment of money
in excess of $20,000,000 (or the Equivalent thereof in one or more
Foreign Currencies) shall be rendered against one or more of the
Borrowers and their Subsidiaries and shall remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) One or more nonmonetary judgments or orders shall be
rendered against one or more of the Borrowers and their Subsidiaries
and shall remain unsatisfied that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 30 consecutive days during
which a stay of enforcement of any such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) Any material provision of this Agreement or any Note after
delivery thereof pursuant to Article III shall for any reason cease to
be valid and binding on or enforceable against any Borrower intended to
be a party thereto, or any Borrower or any of its Subsidiaries or other
Affiliates shall so state in writing; or
(i) (i) Any ERISA Event with respect to a Plan shall have
occurred and be continuing and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such Plan and
the Insufficiency of any and all other Plans with respect to which an
ERISA Event shall have occurred and be continuing (or the liability of
the Borrowers and the
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63
ERISA Affiliates related to such ERISA Events) exceeds $20,000,000 (or
the Equivalent thereof in one or more Foreign Currencies); or
(ii) Any Borrower or any ERISA Affiliate (A) shall engage in
any transaction involving any Plan or any Multiemployer Plan that is
prohibited under Section 4975 of the Internal Revenue Code or Section
406 of ERISA and not exempt under Section 4975 of the Internal Revenue
Code or Section 408 of ERISA or other applicable law or (B) shall fail
to pay when due an amount that is payable by it to the PBGC or to any
Plan or any Multiemployer Plan under Title IV of ERISA, unless the
liability of such Person or Persons with respect to subclauses (ii)(A)
and (ii)(B) of this Section 6.01(i) does not exceed $20,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) in the aggregate;
or
(iii) (A) Any Borrower or any ERISA Affiliate shall be in
default, as defined in Section 4219(c)(5) of ERISA, with respect to any
payment of Withdrawal Liability or (B) a proceeding shall be instituted
by a fiduciary of a Multiemployer Plan against any Borrower or any
ERISA Affiliate to enforce Section 515 of ERISA and such proceeding
shall not have been stayed or dismissed within 60 days thereafter,
unless the liability of such Person or Persons with respect to
subclauses (iii)(A) and (iii)(B) of this Section 6.01(i) does not
exceed $20,000,000 (or the Equivalent thereof in one or more Foreign
Currencies) in the aggregate; or
(j) Any Borrower (other than the Company) shall cease to be a
Substantially Owned Subsidiary; or
(k) A Change of Control shall occur;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Advances and to purchase
Discounted Notes to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders,
by notice to the Borrowers, declare the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each of the
Borrowers; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Borrower under the U.S. Federal
Bankruptcy Code or any similar bankruptcy or insolvency law of any other
jurisdiction, (A) the obligation of each Lender to make Advances and to purchase
Discounted Notes shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each of the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to induce each Lender
to make Advances from time to time to, and to
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64
purchase Discounted Notes from time to time from, the Borrowers and to induce
the Administrative Agent to act in such capacity hereunder, the Company hereby
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all obligations of
each of the other Borrowers now or hereafter existing under this Agreement and
the Notes of such other Borrowers, whether for principal, Face Amount, interest,
fees, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any Lender in enforcing its rights under this Article
VII. Without limiting the generality of the foregoing, the Company's liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Borrower to the Administrative Agent or any
Lender under this Agreement or any Note of such other Borrower but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Borrower.
SECTION 7.02. Guarantee Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Administrative Agent or any Lender with respect thereto.
The obligations of the Company under this Article VII are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Company to enforce this Article VII, irrespective of
whether any action is brought against any other Borrower or whether any other
Borrower is joined in any such action or actions. The liability of the Company
under this Article VII shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement
or any Note, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other obligations of any other Borrower under this Agreement or any
Note, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note (including, without limitation, any
increase in the Guaranteed Obligations resulting from extensions of
additional credit to any other Borrower or otherwise);
(c) any taking, exchange, release or nonperfection of any
collateral or any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Guarantee
Obligations;
(d) any change, restructuring or termination of the structure
or existence of any other Borrower or any of its Subsidiaries;
(e) any failure of the Administrative Agent or any Lender to
disclose to the Company any information relating to the financial
condition, operations, properties or prospects of any other Borrower
now or hereafter known by the Administrative Agent or such Lender, as
the case may be; or
(f) any other circumstance (including, without limitation, any
statute of limitations to the fullest extent permitted by applicable
law or any existence of or reliance on any
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65
representation by the Administrative Agent or any Lender) that might
otherwise constitute a defense available to, or a discharge of, the
Company, any other Borrower or any other guarantor or surety.
The guarantee of the Company set forth in this Article VII shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Administrative Agent or any of the Lenders upon the insolvency, bankruptcy
or reorganization of any other Borrower or otherwise, all as though such payment
had not been made.
SECTION 7.03. Waivers. (a) The Company hereby unconditionally
and irrevocably waives promptness, diligence, presentment, demand for payment,
protest, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and the guarantee of the Company set forth in this
Article VII, and any requirement that any right or power be exhausted or any
action be taken against any other Borrower or against any other guarantor of all
or any portion of the Advances or the Discounted Notes.
(b) The Company hereby unconditionally and irrevocably waives
any right to revoke its guarantee set forth in this Article VII, and
acknowledges that such guarantee is continuing in nature and applies to all of
the Guaranteed Obligations, whether existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives
any duty on the part of the Administrative Agent or any Lender to disclose to
the Company any matter, fact or thing relating to the business, properties,
operation or condition of any other Borrower or any of its Subsidiaries now or
hereafter known by the Administrative Agent or such Lender, as the case may be.
(d) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated under
this Agreement and the Notes and that the waivers set forth in this Section 7.03
are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Borrower or any other insider guarantor that
arise from the existence, payment, performance or enforcement of the obligations
of the Company under this Article VII or otherwise under this Agreement and its
Notes, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any Lender against another
Borrower or any other insider guarantor or any collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from another
Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Article VII shall have been
paid in full in cash and all of the Commitments shall have expired or
terminated. If any amount shall be paid to the Company in violation of the
immediately preceding sentence at any time prior to the later of (a) the payment
in full in cash of all of the Guaranteed Obligations and all of the other
amounts payable under this Article VII and (b) the Termination Date, such amount
shall be held in trust for the benefit of the Administrative Agent and the
Lenders and shall forthwith be paid to the Administrative Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under
this Article VII, whether matured or
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66
unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Guaranteed Obligations or any other amounts payable under
this Article VII thereafter arising. If (i) the Company shall make payment to
the Administrative Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all of the other amounts
payable under this Article VII shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Administrative Agent and the Lenders
will, at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment by the Company.
SECTION 7.05. Continuing Guarantee; Assignments. The guarantee
of the Company set forth in Section 7.01 is a continuing guarantee and shall (a)
remain in full force and effect until the later of (i) the payment in full in
cash of all of the Guaranteed Obligations and all other amounts payable under
this Article VII and (ii) the Termination Date, (b) be binding upon the Company,
its successors and assigns, (c) inure to the benefit of and be enforceable by
each Lender and the Administrative Agent and their respective successors,
transferees and assigns and (d) be reinstated if at any time any payment to a
Lender or the Administrative Agent hereunder is required to be returned by such
Lender or the Administrative Agent, as the case may be. Without limiting the
generality of clause (c) of the immediately preceding sentence, each Lender may
assign or otherwise transfer all or a portion of its rights and obligations
under this Agreement (including, without limitation, the Advances owing to it,
the Discounted Notes purchased by it and any other Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all of
the benefits in respect thereof granted to such Lender under this Article VII or
otherwise, in each case as provided in Section 9.07.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or to applicable law. The Administrative
Agent agrees to give to each Lender prompt notice of each notice given to it by
any Borrower pursuant to the terms of this Agreement.
(b) Neither the Documentation Agent nor the Syndication Agent
shall have any powers or discretion under this Agreement or any Note other than
those afforded to it in its capacity as a Lender, and each Lender hereby
acknowledges that the Documentation Agent and Syndication Agent have no
liabilities under this Agreement or any Note other than those assumed by them in
their respective capacities as Lenders.
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SECTION 8.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its officers, directors, employees, agents
or advisors shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and
Acceptance or an Assumption Agreement, as the case may be, entered into
by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07 or 2.17,
respectively;
(ii) may consult with legal counsel (including counsel for the
Company), independent certified public accountants and other experts
selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection
with this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or
conditions of this Agreement or any Note on the part of any Borrower or
to inspect the property (including the books and records) of any
Borrower;
(v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 8.03. Administrative Agent and Affiliates. With
respect to its Commitment, the Advances made by it, the Discounted Notes
purchased by it and any other Note or Notes issued to it, Credit Suisse (or any
successor Administrative Agent appointed pursuant to Section 8.06) shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Credit Suisse (or any such successor) in its individual capacity. Credit Suisse
(or any such successor) and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, accept investment banking engagements
from, and generally engage in any kind of business with, any Borrower, any of
its Subsidiaries and any Person who may do business with or own securities of
any Borrower or any such Subsidiary, all as if Credit Suisse (or any such
successor) were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent,
the Documentation Agent, the
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Syndication Agent or any other Lender and based on the financial statements
referred to in Section 4.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Documentation Agent, the
Syndication Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent required to be paid and not reimbursed
by the Borrowers), according to their respective Pro Rata Shares of principal
amounts of the Revolving Credit Notes held by each of them (or if no Revolving
Credit Notes are outstanding at such date or if any Revolving Credit Notes or
any Discounted Notes are held by Persons that are not Lenders at such date,
according to their respective Pro Rata Shares of the aggregate Commitments at
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any Note or any action taken or omitted by the Administrative Agent
under this Agreement or any Note; provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its Pro Rata Share of any out-of-pocket costs and
expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement or any Note to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrowers.
SECTION 8.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Company and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent;
provided that, so long as no Default shall have occurred and be continuing, the
Company shall have the right to propose a successor Administrative Agent to the
Lenders and shall have the right to consent to any such successor Administrative
Agent, such consent not to be unreasonably withheld and to be deemed to have
been given if the Company does not object to the proposed successor
Administrative Agent within five Business Days after notice thereof. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders (and, if so required under the immediately preceding sentence, consented
to by the Company), and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any state thereof and having a combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring
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69
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Revolving Credit Notes, the Master Discounted
Note or the Discounted Notes, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or
3.02 or, with respect to all Consenting Lenders and all Assuming
Lenders, Section 3.05;
(b) increase the aggregate Commitments of the Lenders or
subject the Lenders to any additional obligations;
(c) reduce the principal of, or interest on, the Revolving
Credit Advances, or the Face Amount of, or Discount on, the Discounted
Notes, or any fees (other than any fees referred to in Section 2.04(b))
or other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of,
or interest on, the Revolving Credit Advances, or Face Amount of, or
Discount on, the Discounted Notes, or any fees (other than any fees
referred to in Section 2.04(b)) or other amounts payable hereunder,
except pursuant to Section 2.17 as in effect on the date of this
Agreement;
(e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances and
the aggregate unpaid Face Amount of the Discounted Notes, or the number
of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder;
(f) release or limit the obligations of the Company under any
provision of Article VII; or
(g) amend this Section 9.01;
and provided further, however, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
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SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder, unless otherwise expressly stated herein,
shall be in writing (including telecopier, telegraphic or telex communication)
and mailed, telecopied, telegraphed, telexed or delivered, if to any Initial
Borrower, at its address set forth below its name on the signature pages hereof;
if to any Designated Subsidiary that becomes a Borrower hereunder, at its
address set forth below its name on the signature page to its Designation
Letter; if to any Initial Lender, at its Base Rate Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Base Rate
Lending Office specified in the Assignment and Acceptance or the Assumption
Agreement, as the case may be, pursuant to which it became a Lender; if to the
Administrative Agent, at its address at 12 East 49th Street, New York, New York
10017 (Telecopier No. (212) 238-5073), Attention: Mr. Scott Solomon, Agency
Department; or, as to any Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or any of the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) If any notice required under this Agreement is permitted
to be made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower delivering such notice notwithstanding any inconsistency between
the notice provided by telephone and any subsequent writing in confirmation
thereof provided to the Administrative Agent or such Lender; provided that any
such action taken or omitted to be taken by the Administrative Agent or such
Lender shall have been in good faith and in accordance with the terms of this
Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.09 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Initial Borrower (other
than the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B) in
the case of clause (ii) of the immediately preceding sentence, the delivery of
any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof or
consent thereto; nor shall any single or partial exercise of any such right
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71
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by applicable law.
SECTION 9.04. Costs and Expenses. (a) Each of the Borrowers
jointly and severally agrees to pay, or to reimburse the Administrative Agent
from time to time upon demand for, all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all syndication (including printing and distribution) costs and expenses and,
with the approval of the Company, consultant costs and expenses and (B) the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement, the Notes and the other
documents to be delivered hereunder. Each of the Borrowers jointly and severally
further agrees to pay, or to reimburse the Administrative Agent and the Lenders
from time to time upon demand for, all reasonable costs and expenses of the
Administrative Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses, but without duplication for any costs and
expenses for which the Borrowers are otherwise obligated to indemnify the
Administrative Agent and the Lenders under Section 9.04(b)), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Administrative Agent and each Lender.
(b) Each of the Borrowers jointly and severally agrees to
indemnify and hold harmless the Administrative Agent, the Documentation Agent,
the Syndication Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against, and to reimburse each Indemnified Party from time to
time upon demand for, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or the Discounted Notes or (ii) the
actual or alleged presence of Hazardous Materials on any property of any
Borrower or any of its Subsidiaries or any Environmental Action relating in any
way to any Borrower or any of its Subsidiaries, in each case whether or not such
investigation, litigation or proceeding is brought by any Borrower, its
directors, shareholders or creditors or any Indemnified Party or any other
Person or an Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except (A) to the extent
such claim, damage, loss, liability or expense is found by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (B) those resulting solely from claims of a Lender solely
against one or more other Lenders (and not from claims of one or more Lenders
against the Administrative Agent, the Documentation Agent, or the Syndication
Agent) not attributable to the actions of any Borrower or any of its
Subsidiaries or other Affiliates and for which none of the Borrowers, any of
their Subsidiaries or any of their other Affiliates otherwise has liability.
Each Borrower also agrees not to assert any claim against the Administrative
Agent, the Documentation Agent, the Syndication Agent, any Lender or any of
their Affiliates, or any of their respective officers, directors, employees,
attorneys, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to this Agreement, any Note, any of the transactions contemplated hereby or the
actual or proposed use of the proceeds of the Advances
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72
or the Discounted Notes. No Indemnified Party shall settle or otherwise pay or
agree to pay any claim for which the Borrowers are obligated to provide
indemnification under this Section 9.04(b) without the prior written consent of
the Company, which consent shall not be unreasonably withheld.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or any LIBO Rate Advance, or any repurchase of any
Discounted Note, is made by any Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance or the Maturity
Date of such Discounted Note, as the case may be, as a result of a payment or
Conversion pursuant to Section 2.09, 2.10 or 2.12, acceleration of the maturity
of the Notes pursuant to Section 6.01 or by an Eligible Assignee to any Lender
other than on the last day of the Interest Period or on the Maturity Date
therefor, as the case may be, upon an assignment of the rights and obligations
of such Lender under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a), or for any other reason, the
Borrowers jointly and severally agree to pay, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain such Advance or such Discounted Note.
(d) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of
principal, Face Amount, interest and all other amounts payable hereunder and
under the Notes.
SECTION 9.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and any and all other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement and the Note or
Notes held by such Lender, whether or not such Lender shall have made any demand
under this Agreement or any such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify each Borrower after any such
setoff and application; provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
and its Affiliates under this Section 9.05 are in addition to any other rights
and remedies (including, without limitation, other rights of setoff) that such
Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Initial Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and, thereafter, shall be
binding upon and inure to the benefit of each Borrower, the Administrative
Agent, the Documentation Agent, the Syndication Agent and each
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Lender and their respective successors and assigns, except that no Borrower
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may, and, if demanded by the Company (following (i) a demand by such Lender for
the payment of, or the incurrence by a Borrower of any obligation to pay,
additional compensation pursuant to Section 2.07(c), 2.11 or 2.14 or (ii) an
assertion by such Lender pursuant to Section 2.12 that it is impracticable or
unlawful for such Lender to make Eurocurrency Rate Advances or to purchase
Discounted Notes), upon at least 30 Business Days' notice to such Lender and the
Administrative Agent, each Lender will, assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it, the Discounted Notes purchased by it and the Revolving Credit Note
or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, any Competitive
Bid Advances owing to it and any Competitive Bid Notes held by it);
(B) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall be
$20,000,000 or an integral multiple of $1,000,000 in excess thereof;
(C) each such assignment shall be to an Eligible Assignee;
(D) each such assignment made as a result of a demand by the
Company pursuant to this Section 9.07(a) shall be arranged by the
Company with the approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed, and shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other
such assignments that, in the aggregate, cover all of the rights and
obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to make any assignment as a
result of a demand by the Company pursuant to this Section 9.07(a)
unless and until such Lender shall have received one or more payments
from (1) one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of all Advances
owing to, and the aggregate Accreted Value to the date of such
assignment of all outstanding Discounted Notes purchased by, such
Lender, together with accrued interest on such Advances to the date of
payment of such principal amount, and (2) the Company and/or one or
more Eligible Assignees in an aggregate amount equal to all other
amounts payable to such Lender under this Agreement and the Notes
(including, without limitation, any amounts owing under Sections
2.07(c), 2.11 and 2.14); and
(F) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment, and each Eligible
Assignee party to such assignment shall pay a processing and
recordation fee of $3,500;
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provided further, however, that no Person to which an assignment is being made
in accordance with this Section 9.07(a) shall be entitled to any additional
compensation under Sections 2.11, 2.12 and 2.14 in excess of the aggregate
amounts payable under such Sections to the Lender making such assignment prior
to the effective date of such Assignment and Acceptance, unless such additional
compensation is payable to such Person as a result of the adoption or enactment
of, or changes in or in the applicability, the interpretation or the
implementation of, any law, rule, regulation, directive, guideline or request
after such effective date. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (1) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (2) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any
of its obligations under this Agreement or any Note, or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01(e) 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;
(iv) such assignee will, independently and without reliance
upon the Administrative Agent, the Documentation Agent, the Syndication
Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and
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(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within ten Business Days after receipt of such notice by the Company, each
Borrower shall, at its own expense, execute and deliver to the Administrative
Agent in exchange for the surrendered Revolving Credit Note a new Revolving
Credit Note from such Borrower to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Revolving Credit Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Revolving Credit Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Credit Note or Notes, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A-1 hereto. Upon the Administrative
Agent's receipt of notice from the assigning Lender that such assigning Lender
is satisfied with the form and substance of such new Revolving Credit Notes, the
Administrative Agent shall, at the expense of the Borrowers, cancel the
surrendered Revolving Credit Notes of such assigning Lender and deliver to the
Company such cancelled Revolving Credit Notes.
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02(a) a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and the principal amount of
the Advances owing to, and the Face Amount of the Discounted Notes purchased by,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than any Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it, the Discounted Notes purchased by it and the other Note or Notes held by
it); provided, however, that:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment hereunder) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Notes
for all purposes of this Agreement;
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(iv) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement; and
(v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Advances, the Face
Amount of, or Discount on, the Discounted Notes, or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal
of, or interest on, the Advances, any Face Amount of the Discounted
Notes, or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, except pursuant to Section
2.17;
and provided further that the Borrowers shall not be required to pay any
additional amounts under this Agreement to compensate a participant (or such
Lender, on behalf of a participant) in respect of the rights and obligations of
such participant relating to this Agreement in excess of what the Borrowers
would otherwise be required to pay to such Lender if the participation had not
been sold.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower or any of its Subsidiaries
furnished to such Lender by or on behalf of any Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender in accordance with the terms of
Section 9.09.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it, the Discounted Notes purchased by it and the other Note or
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time and from time to time by delivery to the Administrative
Agent of a Designation Letter, duly executed by the Company and a Substantially
Owned Subsidiary and in substantially the form of Exhibit F hereto, designate
such Subsidiary as a "Designated Subsidiary" for all purposes of this Agreement,
and, upon fulfillment of the applicable conditions set forth in Article III and
after such Designation Letter is accepted by the Administrative Agent, such
Subsidiary shall thereupon become a Designated Subsidiary for all purposes of
this Agreement and, as such, shall have all of the rights and obligations of a
Borrower hereunder. The Administrative Agent shall promptly notify each Lender
of each such designation by the Company and the identity of each such Designated
Subsidiary.
(b) Termination. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations of any Designated
Subsidiary or any Initial Borrower (other than the Company) under this Agreement
and the Notes issued by it, then, so long as at such time such Designated
Subsidiary or such Initial Borrower, as the case may be, has not submitted a
Notice of
162654.6/NYL3
<PAGE>
77
Revolving Credit Borrowing or a Notice of Competitive Bid Borrowing, such
Designated Subsidiary's or such Initial Borrower's status as a Borrower and, if
applicable, as a Designated Subsidiary shall terminate upon notice to such
effect from the Administrative Agent to the Lenders (which notice the
Administrative Agent shall promptly deliver to the Lenders following its receipt
of such a request from the Company). Thereafter, the Lenders shall be under no
further obligation to make any Advances to, or to purchase any Discounted Notes
from, such Designated Subsidiary or such Initial Borrower, as the case may be.
SECTION 9.09. Confidentiality. Neither the Administrative
Agent nor any Lender shall disclose any Confidential Information to any Person,
without the prior written consent of the Company, other than (a) to the
Administrative Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and, in each such
case, then only on a confidential basis, (b) as required by any law, rule or
regulation or by judicial process, (c) to any rating agency when required by it
to do so; provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to any Borrower received by it from such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking, (e) to protect, preserve, exercise or enforce the Administrative
Agent's or such Lender's rights under or pursuant to this Agreement or any Note
and (f) to perform any of the Administrative Agent's or such Lender's
obligations under or pursuant to this Agreement or any Note.
SECTION 9.10. Governing Law. This Agreement and each of the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Judgment. (a) Rate of Exchange. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
hereunder (including, without limitation, under Section 7.01) or under any Note
or Notes in another currency into US Dollars or into a Foreign Currency, as the
case may be, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures, a Lender could purchase such other
currency with US Dollars or with a Foreign Currency, as the case may be, in New
York City, New York at the close of business on the Business Day immediately
preceding the day on which final judgment is given, together with any premiums
and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of each Borrower in respect of
any sum due from it to the Administrative Agent or any Lender hereunder or under
any Note or Notes shall, notwithstanding any judgment in a currency other than
US Dollars or a Foreign Currency, as the case may be, be discharged only to the
extent that on the Business Day next succeeding receipt by the Administrative
Agent or such Lender of any sum adjudged to be so due in such other currency,
the Administrative Agent or such Lender may, in accordance with normal banking
procedures, purchase US Dollars or such Foreign Currency, as the case may be,
with such other currency. If the US Dollars or such Foreign
162654.6/NYL3
<PAGE>
78
Currency so purchased are less than the sum originally due to such
Administrative Agent or such Lender in US Dollars or in such Foreign Currency,
each Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Lender against such
loss, and if the US Dollars or such Foreign Currency so purchased exceed the sum
originally due to the Administrative Agent or any Lender in US Dollars or in
such Foreign Currency, as the case may be, the Administrative Agent or such
Lender agrees to remit to such Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York state court or
federal court of the United States of America sitting in New York City, New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by applicable law, in such federal court. Each Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its address
specified pursuant to Section 9.02. Each Initial Borrower (other than the
Company) and each Designated Subsidiary hereby further agrees that service of
process in any such action or proceeding brought in any such New York state
court or in any such federal court may be made upon the Company at its address
referred to in Section 9.02, and each Initial Borrower (other than the Company)
and each Designated Subsidiary hereby irrevocably appoints the Company as its
authorized agent to accept such service of process, and hereby irrevocably
agrees that the failure of the Company to give any notice of any such service to
such Initial Borrower or such Designated Subsidiary, as the case may be, shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable law. Nothing in this Agreement shall affect any right
that any party may otherwise have to serve legal process in any other manner
permitted by applicable law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York state or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) To the extent that any Borrower has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, such Borrower hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and the Notes.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement
162654.6/NYL3
<PAGE>
79
or the Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE BORROWERS
THE BLACK & DECKER CORPORATION
By: /S/ KATHLEEN W. HYLE
Name: Kathleen W. Hyle
Title: Treasurer
Address: 701 East Joppa Road
Towson, Maryland 21286
Telephone: (410) 716-3042
Telecopier: (410) 716-3778
BLACK & DECKER HOLDINGS INC.
By: /S/ CHRISTOPHER POWELL-SMITH
Name: Christopher Powell-Smith
Title: MR
Address: 160, Aldersgate St., London
BLACK & DECKER
By: /S/ W. IAN B. FREEMAN
Name: W. Ian B. Freeman
Title: Director
Address: 210 Bath Road
Slough, Berkshire
England SL1 3YD
BLACK & DECKER INTERNATIONAL
HOLDINGS, B.V.
By: /S/ A.D.B.M. KOK
Name: A.D.B.M. Kok
Title: Director
Address: Zwolseweg 490-494. Wenum Wiesel
The Netherlands
162654.6/NYL3
<PAGE>
80
BLACK & DECKER G.m.b.H.
By: /S/ ROLAND STEINBERG
Name: Roland Steinberg
Title: Managing Director
Address: Black & Decker GmbH, 65510
Idstein/Germany
BLACK & DECKER (FRANCE) S.A.S.
By: /S/ GUY-FRANCOIS VANNIER MOREAU
Name: Guy-Francois Vannier Moreau
Title: President
Address: LePaisy 69570 Dardilly
BLACK & DECKER (NEDERLAND) B.V.
By: /S/ A.D.B.M. KOK
Name: A.D.B.M. Kok
Title: Director
Address: Zwolseweg 490-494. Wenum Wiesel
The Netherlands
EMHART GLASS S.A.
By: /S/ KURT E. SIEGENTHALER
Name: Kurt E. Siegenthaler
Title: Chairman and Delegate of the Board
Address: Gewerbestrasse 11
CH-6330 CHAM
THE AGENTS
CREDIT SUISSE,
as Administrative Agent
By:/S/DAVID W. KRATOVIL /S/ADRIAN GERMANN
Name:David W. Kratovil Adrian Germann
Title: Member of Sen. Mgmt. Associate
162654.6/NYL3
<PAGE>
81
CITIBANK, N.A.,
as Documentation Agent
By: /S/ PRAKASH M. CHONKAR
Name: Prakash M. Chonkar
Title: As Attorney-In-Fact
NATIONSBANK, N.A.,
as Syndication Agent
By: /S/ CATHY A. WILCOX
Name: Cathy A. Wilcox
Title: Senior Vice President
THE INITIAL LENDERS
Commitment
$37,500,000 CITIBANK, N.A.
By: /S/PRAKASH M. CHONKAR
Name: Prakash M. Chonkar
Title: As Attorney-In-Fact
$37,500,000 CREDIT SUISSE
By:/S/DAVID W. KRATOVIL
Name: David W. Kratovil
Title: Member of Senior Management
By: /S/ADRIAN GERMANN
Name: Adrian Germann
Title: Associate
$37,500,000 MIDLAND BANK plc
By: /S/ S G MCCARDELL
Name: S G McCardell
Title: Authorized Signatory
162654.6/NYL3
<PAGE>
82
$37,500,000 NATIONSBANK, N.A.
By: /S/ CATHY A. WILCOX
Name: Cathy A. Wilcox
Title: Senior Vice President
$30,000,000 BANK OF AMERICA NT&SA
By: /S/ JOHN W. POCALYKO
Title: John W. Pocalyko
Name: Vice President
$30,000,000 CHEMICAL BANK
By: /S/ CAROL A. ULMER
Name: Carol A. Ulmer
Title: Vice President
$30,000,000 THE BANK OF NOVA SCOTIA
By: /S/ J. ALAN EDWARDS
Name: J. Alan Edwards
Title: Authorized Signatory
$20,000,000 ABN AMRO BANK N.V. NEW YORK BRANCH
By: /S/ GEORGE M. DUGAN
Name: George M. Dugan
Title: Vice President
By: /S/ DARIN COHEN
Name: Darin Cohen
Title: Corporate Banking Officer
162654.6/NYL3
<PAGE>
83
$20,000,000 AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /S/ PAUL CLIFFORD
Name: Paul Clifford
Title: Vice President
$20,000,000 BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By: /S/ CHARLES DOUGHERTY /S/ SARAH KIM
Name: Charles Dougherty Sarah Kim
Title: Vice President Asst. Vice Pres.
$20,000,000 BANK BRUSSELS LAMBERT, NEW YORK
BRANCH
By: /S/ JOHN KIPPAX
Name: John Kippax
Title: Vice President
By: /S/ JEAN-LOUIS RECOUSSINE
Name: Jean-Louis Recoussine
Title: Directeur
$20,000,000 BAYERISCHE VEREINSBANK AG
By: /S/ MARIANNE WEINZINGER
Name: Marianne Weinzinger
Title: Vice President
By: /S/ WALTER H. ECKMEIER
Name: Walter H. Eckmeier
Title: Vice President
162654.6/NYL3
<PAGE>
84
$20,000,000 CIBC INC.
By: /S/ JULIA C. COLLINS
Name: Julia C. Collins
Title: Director
$20,000,000 COMMERZBANK AG, NEW YORK BRANCH
By: /S/ SCHMIEDING JURGEN CAMPBELL
Name: Schmieding Jurgen Campbell
Title: VP A.C.
$20,000,000 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /S/ ROBERT GRELLA /S/ SUSAN A. HODGE
Name: Robert Grella Susan A. Hodge
Title: Vice President Vice President
$20,000,000 THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY
By: /S/ JUNRI ODA
Name: Junri Oda
Title: Senior Vice President
$20,000,000 ISTITUTO BANCARIO SAN PAOLO DI TORINO
SPA
By: /S/ GERARO M. MCKENNA
Name: Geraro M. McKenna
Title: Vice President
By: /S/ ROBERT WURSTER
Name: Robert Wurster
Title: First Vice President
162654.6/NYL3
<PAGE>
85
$20,000,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /S/ NOBORU KUBOTA
Name: Noboru Kubota
Title: Deputy General Manager
$20,000,000 PNC BANK, NATIONAL ASSOCIATION
By: /S/ STEFFEN W. CROWTHER
Name: Steffen w. Crowther
Title: Vice President
$20,000,000 ROYAL BANK OF CANADA
By: /S/ PETER D. STEFFEN
Name: Peter D. Steffen
Title: Senior Manager
$20,000,000 SOCIETE GENERALE, New York Branch
By: /S/ SALVATORE GALATIOTO
Name: Salvatore Galatioto
Title: First Vice President
$20,000,000 THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: /S/ SHIGEHIKO MATSUMOTO
Name: Shigehiko Matsumoto
Title: Joint General Manager
$20,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By: /S/ ROBERT H. WOLOHAN
Name: Robert H. Wolohan
Title: Corporate Banking Officer
162654.6/NYL3
<PAGE>
86
$20,000,000 THE FUJI BANK, LIMITED
By: /S/ GINA KEARNS
Name: Gina Kearns
Title: Vice President & Manager
$20,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /S/ RALPH WHITE
Name: Ralph White
Title: VP
By: /S/ SALVATORE BATTINELLI
Name: Salvatore Battinelli
Title: Vice President
Credit Department
- ----------------
$600,000,000 TOTAL OF COMMITMENTS
162654.6/NYL3
Exhibit 11(a)
THE BLACK & DECKER CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(Millions of Dollars Except Per Share Data)
<TABLE>
<CAPTION>
For The Three Months Ended
March 31,1996 April 2,1995
Amount Per Share Amount Per Share
<S> <C> <C> <C> <C>
Primary:
Average shares outstanding 87.0 85.0
Dilutive stock options and stock issuable under employee
benefit plans--based on the Treasury stock method
using the average market price 2.1 (Note 1)
---- --------
Adjusted shares outstanding 89.1 85.0
==== ====
Earnings (loss) from continuing operations $(32.4) $19.1
Less preferred stock dividend 2.9 2.9
----- -----
Earnings (loss) from continuing operations
attributable to common stock $(35.3) $(.40) $16.2 $ .19
======= ====== ===== =====
Fully Diluted:
Average shares outstanding 87.0 85.0
Dilutive stock options and stock issuable under employee
benefit plans--based on the Treasury stock method
using the higher of the average market price or
ending market price 2.5 (Note 1)
---- --------
Adjusted shares outstanding 89.5 85.0
Average shares assumed to be converted through
convertible preferred stock 6.3 (Note 2) 6.3 (Note 2)
----- -----
Fully diluted average shares outstanding 95.8 91.3
==== ====
Earnings (loss) from continuing operations $(32.4) $(.34) $19.1 $ .21
======= ====== ===== =====
<FN>
Notes: 1. Dilutive effect of common stock equivalents is less than 3% for
the three-month period ended April 2, 1995 and has not been
shown.
2. The assumed conversion of convertible preferred stock is
anti-dilutive and, therefore, is not used in the calculation of
fully diluted earnings per share included in the financial
statements.
</FN>
</TABLE>
<PAGE>
Exhibit 11(b)
THE BLACK & DECKER CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(Millions of Dollars Except Per Share Data)
<TABLE>
<CAPTION>
For The Three Months Ended
March 31,1996 April 2,1995
Amount Per Share Amount Per Share
<S> <C> <C> <C> <C>
Primary:
Average shares outstanding 87.0 85.0
Dilutive stock options and stock issuable under employee
benefit plans--based on the Treasury stock method
using the average market price 2.1 (Note 1)
---- --------
Adjusted shares outstanding 89.1 85.0
==== ====
Net earnings $38.0 $25.7
Less preferred stock dividend 2.9 2.9
----- -----
Net earnings attributable to common stock $35.1 $.39 $22.8 $ .27
===== ==== ===== =====
Fully Diluted:
Average shares outstanding 87.0 85.0
Dilutive stock options and stock issuable under employee
benefit plans--based on the Treasury stock method
using the higher of the average market price or
ending market price 2.5 (Note 1)
---- --------
Adjusted shares outstanding 89.5 85.0
Average shares assumed to be converted through
convertible preferred stock 6.3 (Note 2) 6.3 (Note 2)
----- -----
Fully diluted average shares outstanding 95.8 91.3
==== ====
Net earnings $38.0 $.40 $25.7 $ .28
===== ==== ===== =====
<FN>
Notes: 1. Dilutive effect of common stock equivalents is less than 3% for
the three-month period ended April 2, 1995 and has not been
shown.
2. The assumed conversion of convertible preferred stock is
anti-dilutive and, therefore, is not used in the calculation of
fully diluted earnings per share included in the financial
statements.
</FN>
</TABLE>
EXHIBIT 12
THE BLACK & DECKER CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of Dollars Except Ratios)
Three Months Ended
March 31, 1996
EARNINGS:
Earnings (loss) from continuing operations before
income taxes (Note 1) $(34.2)
Interest expense 39.9
Portion of rent expense representative of an
interest factor 5.6
-----
Adjusted earnings from continuing operations
before taxes and fixed charges (Note 1) $11.3
=====
FIXED CHARGES:
Interest expense $39.9
Portion of rent expense representative of an
interest factor 5.6
-----
Total fixed charges $45.5
=====
RATIO OF EARNINGS TO FIXED CHARGES (Notes 1 and 2) .25
===
Note: 1. Excludes earnings from discontinued operations. Included in
earnings (loss) from continuing operations before income taxes is
a restructuring charge in the amount of $81.6.
2. Earnings from continuing operations before income taxes are
insufficient to cover fixed charges by the amount of $34.2.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains financial information extracted from the Corporation's
unaudited interim financial statements as of and for the three months ended
March 31, 1996, and the accompanying footnotes and is qualified in its entirety
by the reference to such finanical statements.
</LEGEND>
<CIK> 0000012355
<NAME> THE BLACK & DECKER CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 112,500
<SECURITIES> 0
<RECEIVABLES> 616,400<F1>
<ALLOWANCES> 0
<INVENTORY> 920,400
<CURRENT-ASSETS> 1,804,100
<PP&E> 862,400<F2>
<DEPRECIATION> 0
<TOTAL-ASSETS> 5,203,900
<CURRENT-LIABILITIES> 1,419,300
<BONDS> 1,719,500
0
150,000
<COMMON> 43,700
<OTHER-SE> 1,257,700
<TOTAL-LIABILITY-AND-EQUITY> 5,203,900
<SALES> 1,065,000
<TOTAL-REVENUES> 1,065,000
<CGS> 670,100
<TOTAL-COSTS> 1,057,900
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 39,900
<INCOME-PRETAX> (34,200)
<INCOME-TAX> (1,800)
<INCOME-CONTINUING> (32,400)
<DISCONTINUED> 70,400
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 38,000
<EPS-PRIMARY> .39
<EPS-DILUTED> .39
<FN>
<F1>Represents net trade receivables.
<F2>Represents net property, plant and equipment.
</FN>
</TABLE>
