<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form l0-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION l3 or l5(d)
OF THE SECURITIES EXCHANGE ACT OF l934
For the quarterly period ended December 31, 1996
[ ] 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 l-3863
HARRIS CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 34-0276860
- - --------------------------- ---------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
l025 West NASA Boulevard
Melbourne, Florida 32919
--------------------------------------------------
(Address of principal executive offices)(Zip Code)
(407) 727-9100
----------------------------------------------------
(Registrant's telephone number, including area code)
===============================
Indicate by check mark whether the registrant (l) has filed all reports required
to be filed by Section l3 or l5 (d) of the Securities Exchange Act of l934
during the preceding l2 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.
Yes X No
--- ---
The number of shares outstanding of the registrant's common stock, as of January
30, 1997 was 39,002,938 shares.
<PAGE> 2
PART I. FINANCIAL INFORMATION
-----------------------------
ITEM 1. Financial Statements
- - -----------------------------
HARRIS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF INCOME
The following information for the quarters ended December 31, 1996 and December
31, 1995, has not been audited by independent accountants, but in the opinion of
management reflects all adjustments (consisting only of normal recurring
accruals) necessary for a fair presentation of the results for the indicated
periods. The results of operations for the quarter ended December 31, 1996 are
not necessarily indicative of the results for the full fiscal year.
<TABLE>
<CAPTION>
Quarter Ended Two Quarters Ended
-------------------------- -------------------------
December 31, December 31, December 31, December 31,
1996 1995 1996 1995
------------ ------------ ------------ ------------
(In millions, except per share amounts)
<S> <C> <C> <C> <C>
Revenue
Revenue from sales, rentals
and services $945.9 $916.6 $1,829.3 $1,733.3
Interest 9.1 9.3 18.2 18.0
------ ------ -------- --------
955.0 925.9 1,847.5 1,751.3
Costs and Expenses
Cost of sales, rentals and
services 634.3 615.5 1,220.0 1,160.6
Engineering, selling and
administrative expenses 239.0 223.0 469.9 434.5
Interest 16.0 15.7 30.8 30.7
Other - net (3.8) 9.6 (.9) 11.8
------ ------ ------- --------
Income before income taxes 69.5 62.1 127.7 113.7
Income taxes 24.0 21.7 44.1 39.8
------ ------ ------- --------
Net Income $ 45.5 $ 40.4 $ 83.6 $ 73.9
====== ====== ======= ========
Net Income Per Common Share (Primary) $1.17 $1.03 $2.15 $1.89
===== ===== ===== =====
Cash Dividends Paid Per Common Share $.38 $.34 $.76 $.68
==== ==== ==== ====
</TABLE>
See Notes to Financial Statements
(2)
<PAGE> 3
<TABLE>
HARRIS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
<CAPTION>
June 30,
December 31, 1996
1996 (audited)
------------ ---------
ASSETS (In millions)
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 61.4 $ 74.6
Marketable securities 117.2 24.8
Trade accounts and notes receivable - net, less allowance for
collection losses of $32,800,000 at December 31, 1996
and $31,300,000 at June 30, 1996 756.1 727.8
Unbilled costs and accrued earnings on fixed price contracts
based on percentage-of-completion accounting, less progress
payments of $238,200,000 at December 31, 1996 and
$216,600,000 at June 30, 1996 401.1 397.8
Inventories:
Work in process and finished products 472.9 412.7
Raw materials and supplies 133.9 131.4
------- -------
606.8 544.1
Deferred income taxes 138.9 171.8
------- -------
Total Current Assets 2,081.5 1,940.9
Plant and equipment, less allowances for depreciation of
$1,270,400,000 at December 31, 1996 and $1,278,100,000 at
June 30, 1996 827.3 721.7
Notes receivable - net 217.9 190.7
Intangibles resulting from acquisitions 210.9 212.8
Other assets 175.0 140.6
-------- --------
$3,512.6 $3,206.7
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Short-term debt $ 270.2 $ 181.3
Trade accounts payable 214.8 209.0
Compensation and benefits 193.6 209.3
Other accrued items 209.6 190.8
Advance payments and unearned income 296.8 287.8
Income taxes 83.6 102.7
Current portion of long-term debt 2.1 2.2
-------- --------
Total Current Liabilities 1,270.7 1,183.1
Deferred income taxes 70.6 62.2
Long-term debt 689.0 588.5
Shareholders' Equity
Capital stock:
Preferred Stock, without par value:
Authorized - 1,000,000 shares; issued - none - -
Common Stock, par value $1 per share:
Authorized - 250,000,000 shares; issued 39,002,888 shares
at December 31, 1996 and 38,871,603 at June 30, 1996 39.0 38.9
Other capital 277.6 266.0
Retained earnings 1,126.9 1,072.7
Net unrealized gain on securities available-for-sale (net
of taxes) 65.5 11.1
Unearned compensation (5.9) .3
Cumulative translation adjustments (20.8) (16.1)
-------- --------
Total Shareholders' Equity 1,482.3 1,372.9
-------- --------
$3,512.6 $3,206.7
======== ========
</TABLE>
See Notes to Financial Statements
(3)
<PAGE> 4
<TABLE>
HARRIS CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
<CAPTION>
Two Quarters Ended
--------------------------
December 31, December 31,
1996 1995
------------- ------------
(In millions)
<S> <C> <C>
Cash flows from operating activities
Net income $ 83.6 $ 73.9
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation of plant and equipment 85.5 81.1
Non-current deferred income tax 8.4 3.5
(Increase) decrease in:
Accounts and notes receivable (54.8) (20.3)
Unbilled costs and inventories (65.4) (69.7)
Other assets (37.4) (44.6)
Increase (decrease) in:
Trade payables and accrued expenses 8.6 (26.0)
Advance payments and unearned income 9.0 13.4
Income taxes (21.0) (14.4)
Other 8.8 3.2
----- -----
Net cash provided by operating activities 25.3 .1
----- -----
Cash flows from investing activities
Cash paid for acquisitions (5.6) (34.5)
Additions of plant and equipment (197.5) (106.7)
------ ------
Net cash used in investing activities (203.1) (141.2)
------ ------
Cash flows from financing activities
Increase in short-term debt 88.8 110.1
Increase in long-term debt 100.4 12.4
Proceeds from sale of Common Stock 5.0 4.0
Purchase of Common Stock for treasury - (11.1)
Cash dividends (29.5) (26.5)
----- -----
Net cash provided by financing activities 164.7 88.9
----- -----
Effect of exchange rate changes on cash and cash
equivalents (.1) (3.1)
----- -----
Net decrease in cash and cash
equivalents $(13.2) $(55.3)
Cash and cash equivalents, beginning of year 74.6 119.3
------ ------
Cash and cash equivalents, end of period $ 61.4 $ 64.0
====== ======
</TABLE>
See Notes to Financial Statements
(4)
<PAGE> 5
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1996
Note A -- Basis of Presentation
- - -------------------------------
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not include all information and footnotes
necessary for a complete presentation of financial position, results of
operations, and changes in cash flows in conformity with generally accepted
accounting principles. For further information refer to the financial statements
and notes to financial statements included in the Corporation's Annual Report on
Form 10-K for the fiscal year ended June 30, 1996.
Note B -- Reclassifications
- - ---------------------------
Prior year amounts have been reclassified to conform with current year
classifications.
Note C -- Credit Arrangements
- - -----------------------------
In November 1996, the Corporation replaced its existing $500 million revolving
credit agreement with an $800 million syndicated credit facility consisting of
a 364-Day $300 million facility and a five year $500 million facility. These
agreements provide for drawings at interest rates determined by a pricing
matrix based upon the Corporation's long-term debt rating.
(5)
<PAGE> 6
ITEM 2. Management's Discussion & Analysis of Financial Condition & Results of
- - ------------------------------------------------------------------------------
Operations
- - ----------
Results for the second quarter and first two quarters were higher than the
comparable periods a year ago. Segment net sales, operating profit and net
income were as follows:
<TABLE>
<CAPTION>
Quarter Ended Two Quarters Ended
---------------------------------------- -------------------------------------
Dec. 31 Dec. 31 Percent Dec. 31 Dec. 31 Percent
1996 1995 Inc./(Dec) 1996 1995 Inc./(Dec)
---------------------------------------- -------------------------------------
(Dollars in millions)
<S> <C> <C> <C> <C> <C> <C>
NET SALES
Communications $248.4 $212.8 17 $ 456.5 $ 393.4 16
Lanier Worldwide 294.1 287.5 2 553.5 537.3 3
Electronic Systems 242.1 236.2 2 496.5 449.9 10
Semiconductor 161.3 180.1 (10) 322.8 352.7 (8)
----- ----- ------- -------
Total $945.9 $916.6 3 $1,829.3 $1,733.3 4
===== ===== ======= =======
OPERATING PROFIT
Communications $ 22.0 $ 20.2 9 $ 41.6 $ 36.0 16
Lanier Worldwide 33.0 32.0 3 55.6 53.4 4
Electronic Systems 17.3 17.0 2 36.6 37.4 (2)
Semiconductor 19.1 20.3 (6) 39.8 39.4 1
Corporate Expense (5.9) (11.7) (48) (15.1) (21.8) (31)
Interest Expense (16.0) (15.7) 2 (30.8) (30.7) -
----- ----- ---- -----
Total $ 69.5 $ 62.1 12 $127.7 $113.7 12
===== ===== ===== =====
NET INCOME
Communications $11.2 $ 9.4 19 $20.8 $17.0 22
Lanier Worldwide 16.7 14.7 14 27.2 23.6 15
Electronic Systems 8.0 6.3 27 16.0 13.9 15
Semiconductor 9.6 10.0 (4) 19.6 19.4 1
---- ---- ---- ----
Total $45.5 $40.4 13 $83.6 $73.9 13
==== ==== ==== ====
</TABLE>
Communications segment sales and earnings were up strongly over the prior year
periods, led by strong demand for the segment's microwave and broadcast
products. Net income benefited from lower tax rates resulting from tax benefits
of foreign operations.
Sales and operating profit were up slightly in the Lanier Worldwide segment,
while net income was up 14 percent for the quarter and 15 percent year-to-date.
Lower interest expense, favorable foreign exchange rates and lower income taxes
contributed to the strong increase in net income.
Electronic Systems segment sales were up slightly in the second quarter and
moderately for the year, while operating profit was relatively unchanged. Net
income was up sharply for the quarter as the segment recognized tax benefits
associated with the sale of a building. The first two quarters include
write-offs on certain programs that have been substantially offset by the gain
on the sale of a building.
Sales were moderately lower for the Semiconductor segment for both the quarter
and the year due to an industry-wide downturn. Earnings were somewhat lower for
the quarter and slightly higher for the year as the impact of lower sales has
been offset by higher royalty income and improved margins in military and space
products and intelligent power circuits.
Cost of sales as a percentage of net sales decreased to 67.1 percent in the
second quarter and 66.7 percent in the first two quarters of this year compared
to 67.2 percent and 67.0 percent for the respective periods last year. For the
year, cost ratios were lower in the Semiconductor segment due to increased
royalties and in the Lanier segment due to favorable exchange rates.
(6)
<PAGE> 7
Engineering, selling, and administrative expenses as a percentage of net sales
increased to 25.3 percent in the second quarter and 25.7 percent for the year
compared to 24.3 percent and 25.1 percent for the comparable prior year periods.
Operating expenses were somewhat higher in all expense categories, including
research and development, which is $12 million higher for the current year.
Interest expense is only slightly higher for the quarter and the year despite
higher average borrowings as additional interest on borrowings has been
capitalized as a component of plant and equipment under construction.
"Other-net" expenses were significantly lower for the quarter and the year due
to a gain on the sale of a building and foreign currency gains.
The provision for income taxes as a percentage of pretax income was 34.5 percent
in both the second quarter and the first two quarters compared to 35.0 percent
for the same periods a year ago. The statutory federal tax rate for all periods
was 35.0 percent. Tax rates on foreign source income and export sales benefited
the current year periods.
Net income as a percentage of sales was 4.8 percent and 4.6 percent for the
second quarter and year-to-date, compared to 4.4 percent and 4.3 percent in the
same periods last year for the previously stated reasons.
Working capital increased from 757.8 at June 30, 1996, to 810.8 at the end of
the second quarter. The Corporation continues to invest heavily in the capital
expansion of its Semiconductor business. Total capital expenditures for the
Corporation in fiscal 1997 are expected to be between $300-$400 million. The
requirement for funds to finance this investment and other operational
requirements during fiscal 1997 will be met by cash flow from operations and
unused borrowing capacity. In January 1997, the Corporation's long-term debt
rating was raised by Standard and Poor's Ratings Group to A- from BBB+ and was
reaffirmed by Moody's Investors Service as A3.
From time to time, the Corporation invests in emerging technology companies that
complement existing product lines. These investments are normally accounted for
on a cost basis. One such investment, Advanced Fibre Communications, Inc., (AFC)
undertook an initial public offering of its common stock on October 1, 1996.
Based upon the quoted market price of AFC on December 31, 1996, the unrealized
gain on this investment was $57.3 million after tax. On January 24, 1997, AFC
filed a registration statement with the SEC relating to a proposed secondary
public offering. The Corporation has indicated that it intends to sell up to
300,000 AFC shares pursuant to this offering. Based upon certain agreements
entered into with the underwriters, the Corporation will not sell any of its
other AFC shares for the ninety-day period following the closing of the proposed
secondary public offering. At the present time the Corporation has no definitive
plans to sell other AFC shares when the restrictions expire.
(7)
<PAGE> 8
PART II. OTHER INFORMATION
--------------------------
Item 4. Submission of Matters to a Vote of Security Holders.
- - -------------------------------------------------------------
At the Annual meeting of shareholders held on October 25, 1996, the
following proposals were adopted by the margins indicated.
1. To elect three nominees to the Board of Directors:
<TABLE>
<CAPTION>
NOMINEES NUMBER OF SHARES
-------- ----------------
FOR WITHHELD
--- --------
<S> <C> <C>
Robert Cizik 33,248,734 94,439
John T. Hartley 33,248,298 94,875
Karen Katen 33,243,666 99,507
</TABLE>
2. To ratify the selection of Ernst & Young LLP as the independent
public auditors of the Company for the current fiscal year.
For 33,230,049
Against 44,818
Abstain 68,306
Item 6. Exhibits and Reports on Form 8-K.
- - ------------------------------------------
(a) Exhibits:
(10) Material Contracts
Harris Corporation Bank Credit Agreements:
(i) $300,000,000 364-Day Credit Agreement, dated as of
November 6, 1996.
(ii) $500,000,000 5-Year Credit Agreement, dated as of
November 6, 1996.
(11) Statement re: computation of per share earnings.
(27) Financial Data Schedule.
(b) Reports on Form 8-K.
The Registrant filed with the Commission a Current Report on Form 8-K
on October 23, 1996, relating to the filing of a Prospectus Supplement
concerning the proposed offer and sale of up to $150,000,000 aggregate
initial public offering price of the Registrant's Medium Term Notes and
the issuance of a press release announcing its financial results for
the fiscal quarter ended September 30, 1996.
The Registrant filed with the Commission a Current Report on Form 8-K
on December 6, 1996, relating the adoption of a new Stockholder
Protection Rights Plan and the related declaration of a dividend of one
Right for each outstanding share of Common Stock of the Registrant held
of record at the close of business on December 6, 1996.
Items 2, 3 and 5 of Part II are not applicable and have been omitted.
(8)
<PAGE> 9
SIGNATURE
---------
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.
HARRIS CORPORATION
----------------------------------
(Registrant)
Date: February 11, 1997 By:/s/Bryan R. Roub
----------------------------------
Bryan R. Roub
Senior Vice President & Chief
Financial Officer (principal
financial officer and duly
authorized officer)
(9)
<PAGE> 10
EXHIBIT INDEX
-------------
Exhibit No.
Under Reg.
S-K, Item 601 Description
-------------- -----------
[S] [C]
(10)(i) Harris Corporation $300,000,000
364-Day Credit Agreement, dated
as of November 6, 1996.
(10)(ii) Harris Corporation $500,000,000
5-Year Credit Agreement, dated
as of November 6, 1996.
(11) Statement re: computation of per
share earnings.
(27) Financial Data Schedule.
<PAGE> 1
Exhibit 10(i)
CONFORMED COPY
- - --------------------------------------------------------------------------------
$300,000,000
364-DAY
CREDIT AGREEMENT
DATED AS OF NOVEMBER 6, 1996
AMONG
HARRIS CORPORATION,
AS BORROWER
AND
THE LENDERS NAMED HEREIN,
AS LENDERS
THE CHASE MANHATTAN BANK,
SUNTRUST BANK, ATLANTA
AND
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
AS MANAGING AGENTS
AND
ABN AMRO BANK N.V., ATLANTA AGENCY
AND
WACHOVIA BANK OF GEORGIA, N.A.
AS CO-AGENTS
AND
BA SECURITIES, INC.,
AS SYNDICATION AGENT
AND
SUNTRUST BANK, ATLANTA,
AS DOCUMENTATION AGENT
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
- - --------------------------------------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE 1 DEFINITIONS; CONSTRUCTION.................................................2
-------------------------
SECTION 1.1 DEFINITIONS. ...............................................2
-----------
SECTION 1.2 COMPUTATION OF TIME PERIODS. ..............................10
---------------------------
SECTION 1.3 ACCOUNTING TERMS. .........................................10
----------------
ARTICLE 2 AMOUNTS AND TERMS OF THE COMMITMENTS AND LOANS...........................10
----------------------------------------------
SECTION 2.1 COMMITMENTS. ..............................................10
-----------
SECTION 2.2 LOANS.......................................................11
-----
SECTION 2.3 COMPETITIVE BID PROCEDURE...................................12
-------------------------
SECTION 2.4 NEGOTIATED BID LOANS. .....................................15
--------------------
SECTION 2.5 SYNDICATED LOANS............................................15
----------------
SECTION 2.6 VOLUNTARY CONVERSION AND CONTINUATION OF SYNDICATED LOANS. 15
---------------------------------------------------------
SECTION 2.7 FEES. ......................................................16
----
SECTION 2.8 REPAYMENT OF LOANS; NOTES...................................17
-------------------------
SECTION 2.9 INTEREST ON LOANS. ........................................17
-----------------
SECTION 2.10 DEFAULT INTEREST. .........................................18
----------------
SECTION 2.11 INTEREST RATE DETERMINATION AND PROTECTION..................18
------------------------------------------
SECTION 2.12 TERMINATION OR REDUCTION OF THE COMMITMENTS.................19
-------------------------------------------
SECTION 2.13 EXTENSION OF COMMITMENTS....................................19
------------------------
SECTION 2.14 INCREASE OF COMMITMENTS.....................................20
-----------------------
SECTION 2.15 OPTIONAL PREPAYMENTS. .....................................21
--------------------
SECTION 2.16 INABILITY TO DETERMINE INTEREST RATE........................22
------------------------------------
SECTION 2.17 INCREASED COSTS.............................................22
---------------
SECTION 2.18 ILLEGALITY..................................................24
----------
SECTION 2.19 INDEMNITY. ................................................24
---------
SECTION 2.20 PRO RATA TREATMENT. .......................................25
------------------
SECTION 2.21 SHARING OF SETOFFS. .......................................25
------------------
SECTION 2.22 PAYMENTS. .................................................26
--------
SECTION 2.23 TAXES. ....................................................27
-----
SECTION 2.24 ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES. ....28
-----------------------------------------------------
ARTICLE 3 CONDITIONS OF LENDING....................................................28
---------------------
SECTION 3.1 INITIAL CONDITIONS PRECEDENT................................28
----------------------------
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN;
----------------------------------
REPRESENTATIONS AND WARRANTIES..............................29
------------------------------
</TABLE>
- i -
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 4 REPRESENTATIONS AND WARRANTIES...........................................30
------------------------------
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER..............30
----------------------------------------------
ARTICLE 5 COVENANTS OF THE BORROWER................................................32
-------------------------
SECTION 5.1 AFFIRMATIVE COVENANTS.......................................32
---------------------
SECTION 5.2 NEGATIVE COVENANTS..........................................35
------------------
ARTICLE 6 EVENTS OF DEFAULT........................................................38
-----------------
SECTION 6.1 EVENTS OF DEFAULT...........................................38
-----------------
ARTICLE 7 ADMINISTRATIVE AGENT.....................................................41
--------------------
ARTICLE 8 MISCELLANEOUS............................................................44
-------------
SECTION 8.1 WAIVERS AND AMENDMENTS......................................44
----------------------
SECTION 8.2 NOTICES.....................................................45
-------
SECTION 8.3 SURVIVAL OF AGREEMENT.......................................45
---------------------
SECTION 8.4 PAYMENT OF EXPENSES AND TAXES; INDEMNITY....................45
----------------------------------------
SECTION 8.5 ASSIGNMENTS AND PARTICIPATIONS..............................46
------------------------------
SECTION 8.6 RIGHT OF SET-OFF............................................49
----------------
SECTION 8.7 BINDING EFFECT..............................................50
--------------
SECTION 8.8 APPLICABLE LAW. ...........................................50
--------------
SECTION 8.9 INTEREST LIMITATION. ......................................50
-------------------
SECTION 8.10 HEADINGS. .................................................50
--------
SECTION 8.11 EXECUTION IN COUNTERPARTS...................................50
-------------------------
SECTION 8.12 SEVERABILITY................................................50
------------
SECTION 8.13 INTEGRATION.................................................51
-----------
SECTION 8.14 SUBMISSION TO JURISDICTION; WAIVERS.........................51
-----------------------------------
SECTION 8.15 WAIVER OF JURY TRIAL. .....................................51
--------------------
SECTION 8.16 TELEPHONE NOTICE............................................52
----------------
</TABLE>
- ii -
<PAGE> 4
EXHIBITS
- - --------
Exhibit A --- Form of Syndicated Note
Exhibit B --- Form of Competitive Bid Note
Exhibit C --- Form of Negotiated Bid Note
Exhibit D-1 --- Form of Competitive Bid Request
Exhibit D-2 --- Form of Notice of Competitive Bid Request
Exhibit D-3 --- Form of Competitive Bid Quote
Exhibit D-4 --- Form of Competitive Bid Confirmation
Exhibit E --- Form of Notice of Syndicated Borrowing
Exhibit F-1 --- Form of Opinion of Sullivan & Cromwell
Exhibit F-2 --- Form of Opinion of Corporate Counsel to Borrower
Exhibit G --- Form of Closing Certificate of Borrower
Exhibit H --- Form of Assignment and Acceptance
SCHEDULES
- - ---------
Schedule 1.1 --- Addresses and Lending Offices
of Lenders
Schedule 3.1 --- List of Existing Credit Facilities
Schedule 4.1 --- Litigation
Schedule 5.2 --- Existing Liens
- iii -
<PAGE> 5
364-DAY
CREDIT AGREEMENT
----------------
THIS 364-DAY CREDIT AGREEMENT made and entered into as of
November 6, 1996, by and among HARRIS CORPORATION, a Delaware corporation (the
"Borrower"), the banks and lending institutions listed on the signature pages
hereof, any assignees of such banks and lending institutions or any other banks
and lending institutions which become "Lenders" as provided herein (such banks
and lending institutions, and assignees referred to collectively herein as the
"Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), SUNTRUST BANK, ATLANTA, a Georgia banking corporation ("SunTrust"), as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association ("Bank of America"), Chase, SunTrust and Bank of America as
managing agents for the Lenders (in such capacity, each a "Managing Agent" and
collectively, the "Managing Agents"), BA SECURITIES, INC., a New York
corporation, as syndication agent for the Lenders (in such capacity, the
"Syndication Agent"), and ABN AMRO BANK N.V., ATLANTA AGENCY and WACHOVIA BANK
OF GEORGIA, N.A., as co-agents for the Lenders (in such capacity, each a
"Co-Agent" and collectively, the "Co-Agents");
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested the Lenders to extend credit
to the Borrower pursuant to a 364-day revolving credit facility in an aggregate
principal amount at any one time outstanding not to exceed $300,000,000 or, if
the Borrower obtains commitments for increases in the facilities in accordance
with the terms hereof, $400,000,000;
WHEREAS, the Borrower has also requested the Lenders to provide a
procedure whereby the Borrower may invite the Lenders, collectively or
individually, to bid on an uncommitted basis on borrowings by the Borrower to
mature on or prior to the maturity date of the facility;
WHEREAS, the Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Managing Agents, the
Syndication Agent, the Co-Agents, the Documentation Agent and the Administrative
Agent hereby agree as follows:
- 1 -
<PAGE> 6
ARTICLE 1
DEFINITIONS; CONSTRUCTION
-------------------------
SECTION 1.1 DEFINITIONS. In addition to the other terms defined herein,
the following terms used in this Agreement shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"AFFILIATE" means, as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the
Documentation Agent, the Managing Agents, the Syndication Agent and the
Co-Agents.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Loan, Fixed Rate
Loan or Negotiated Bid Loan, and such Lender's Eurodollar Lending Office in the
case of a LIBO Rate Loan.
"APPLICABLE MARGIN" means, for each Interest Period for each LIBO Rate
Syndicated Loan, a rate per annum equal to 0.195%.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance agreement
substantially in the form of EXHIBIT H, entered into by a Lender and an
assignee, to the extent required, approved by the Borrower and the Managing
Agents, and delivered to the Administrative Agent pursuant to Section 8.5.
"AUGMENTING LENDER" has the meaning specified in Section 2.14(b).
"BASE RATE" means the higher of (i) the rate of interest most recently
announced by the Administrative Agent as its reference, base or prime lending
rate, as the case may be, for Dollar loans in the United States and (ii) the
Federal Funds Rate (as in effect from time to time) plus one-half of one percent
(1/2%) per annum.
"BASE RATE LOAN" means a Type of Syndicated Loan which bears interest at
a rate determined by reference to the Base Rate in accordance with the
provisions of Article 2.
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"BORROWING" means a group of Loans of a single Type made by the Lenders
participating therein on a single date and, with respect to LIBO Rate Loans and
Fixed Rate Loans, as to which a single Interest Period is in effect.
"BORROWING DATE" means any Business Day specified by the Borrower as a
date on which the Borrower requests the Lenders to make Loans hereunder.
"BUSINESS DAY" means a day of the year on which commercial banks are not
required or authorized to close for business in New York City and, if the
applicable Business Day relates to any LIBO Rate Loans, on which dealings are
carried on in the London interbank market.
"CLOSING DATE" means November 6, 1996.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means, with respect to any Lender, the amount set opposite
its name on the signature pages hereto, or if such Lender has entered into any
Assignment and Acceptance or is an Augmenting Lender, the amount set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.5(c), as such Commitment may be extended pursuant to Section 2.13,
reduced pursuant to Section 2.12 or Section 8.5(a) or increased pursuant to
Section 2.14 or Section 8.5(a).
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is a part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"COMPETITIVE BID BORROWING" means a Borrowing comprised of Competitive
Bid Loans.
"COMPETITIVE BID LOAN" means a Loan from a Lender to the Borrower
outstanding pursuant to this Agreement and advanced pursuant to the bidding
procedure set forth in Section 2.3 (which Loan may exceed the individual
Commitment of such Lender). Each Competitive Bid Loan shall be either a LIBO
Rate Competitive Bid Loan or a Fixed Rate Loan.
"COMPETITIVE BID LOAN CONFIRMATION" means a Competitive Bid Loan
confirmation, substantially in the form of EXHIBIT D-4, to be delivered by the
Borrower to the Administrative Agent in accordance with Section 2.3(c).
"COMPETITIVE BID NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of EXHIBIT B hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
Competitive Bid Loans made by such Lender.
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"COMPETITIVE BID QUOTE" means a bid quote, substantially in the form of
EXHIBIT D-3, to be delivered by a Lender to the Administrative Agent in response
to a Competitive Bid Request by the Borrower in accordance with Section 2.3(c).
"COMPETITIVE BID RATE" means, as to any Competitive Bid Quote made by a
Lender pursuant to Section 2.3, (i) in the case of a LIBO Rate Competitive Bid
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid Quote.
"COMPETITIVE BID REQUEST" means a Competitive Bid Loan request,
substantially in the form of EXHIBIT D-1, to be delivered by the Borrower to the
Administrative Agent in accordance with Section 2.3(b).
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Syndicated Loans of one Type to another Type pursuant to Section 2.6.
"DEBT" means, as to any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services in respect of which such Person is liable, contingently or otherwise,
as obligor, guarantor or otherwise, or in respect of which such Person otherwise
assures a creditor against loss, (other than current liabilities incurred in the
ordinary course of business and payable in accordance with customary practices)
or which is evidenced by a note, bond, debenture or similar instrument and (b)
all obligations of such Person under any lease of property, real or personal,
the obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLAR EQUIVALENT" has the meaning specified in Section 2.22(f).
"DOLLARS" or "$" mean dollars in lawful currency of the United States of
America.
"DOMESTIC LENDING OFFICE" means the office of each Lender specified as
its "Domestic Lending Office" opposite its name on SCHEDULE 1.1 hereto, or on
the Assignment and Acceptance pursuant to which such Lender becomes a party to
this Agreement, or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the date on which this Agreement becomes
effective in accordance with Section 8.7.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning
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<PAGE> 9
environmental protection matters (including, without limitation, any hazardous
materials, hazardous wastes, hazardous constituents, hazardous or toxic
substances or petroleum products (including crude oil or any fraction thereof))
as now or at any time hereafter in effect.
"EQUITY" means, as to any Person at any date, the consolidated total
assets of such Person less consolidated total liabilities of such Person at such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"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 RESERVE REQUIREMENTS" means, for any day as applied to a
LIBO Rate Loan, the aggregate (without duplication) of the rates (expressed to
the nearest 1/100th of 1%) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for Eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board)
maintained by any Lender.
"EURODOLLAR LENDING OFFICE" means the office of each Lender specified as
its "Eurodollar Lending Office" opposite its name on SCHEDULE 1.1 hereto, or on
the Assignment and Acceptance pursuant to which such Lender becomes a party to
this Agreement or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.1.
"EXISTING CREDIT FACILITIES" means the Borrower's existing bilateral
credit facilities described on SCHEDULE 3.1 attached hereto.
"EXISTING DATE" has the meaning specified in Section 2.13(a).
"FACILITY FEE" has the meaning set forth in Section 2.7(a).
"FEDERAL FUNDS RATE" means, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"FIXED RATE BORROWING" means a Borrowing comprised of Fixed Rate Loans.
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<PAGE> 10
"FIXED RATE LOAN" means a Type of Competitive Bid Loan which bears
interest at a fixed rate per annum.
"GAAP" shall mean generally accepted accounting principles in the United
States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GOVERNMENT CONTRACT" means any contract with or made at the request of
any government or department or agency thereof.
"HEDGING ARRANGEMENTS" means, collectively, (i) any forward contracts,
futures contracts, foreign exchange contracts, currency swap agreements and
other similar agreements and arrangements entered into by the Borrower or any of
its Subsidiaries to protect the Borrower or any Subsidiary against fluctuations
in foreign exchange rates, and (ii) any forward contracts, futures contracts,
interest rate exchange agreements, interest rate cap agreements, interest rate
collar agreements, and other similar arrangements and agreements entered into by
the Borrower or any of its Subsidiaries with respect to fluctuations in interest
rates.
"HAZARDOUS MATERIALS" shall mean any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances or petroleum
products (including crude oil or any fraction thereof), defined or regulated as
such in or under any Environmental Law.
"INSOLVENCY" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"INTEREST PERIOD" means, (a) with respect to each LIBO Rate Syndicated
Loan, the period commencing on the Borrowing Date of such Loan or the last day
of the immediately preceding Interest Period with respect to such Loan, as the
case may be, and ending on the numerically corresponding day (or if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months, as the Borrower may select in accordance with the terms of
this Agreement, and (b) as to any Competitive Bid Loan, the period commencing on
the Borrowing Date with respect to such Loan and ending on the date specified in
the Competitive Bid Quote submitted in connection with such Loan, which date
shall not be earlier than seven days after the Borrowing Date, nor later than
(i) 360 days after the Borrowing Date, in the case of a Fixed Rate Borrowing, or
(ii) 364 days after the Borrowing Date, in the case of a LIBO Rate Borrowing;
provided however, that if any Interest Period would end on date other than a
Business Day, such Interest Period will be extended to the next succeeding
Business Day unless, in the case of LIBO Rate Borrowings only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day.
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<PAGE> 11
"LIBO RATE" means with respect to any Interest Period for any LIBO Rate
Loan, the rate per annum equal to the London InterBank offered rate for deposits
in Dollars for such Interest Period which appears on Telerate Page 3750 as of
11:00 a.m., London time, two (2) Business Days prior to the beginning of such
Interest Period.
"LIBO RATE BORROWING" means a Borrowing comprised of LIBO Rate Loans.
"LIBO RATE COMPETITIVE BID LOAN" means a Type of Competitive Bid Loan
which bears interest at the LIBO Rate plus (or minus) a Margin.
"LIBO RATE LOANS" means LIBO Rate Syndicated Loans and LIBO Rate
Competitive Bid Loans.
"LIBO RATE SYNDICATED LOANS" means a Type of Syndicated Loan which bears
interest at the LIBO Rate plus the Applicable Margin.
"LIEN" means any mortgage, pledge, security interest, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind or nature whatsoever (including, without
limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction or any
other similar recording or notice statute, and any lease having substantially
the same effect as any of the foregoing).
"LOANS" means collectively, Syndicated Loans, Negotiated Bid Loans and
Competitive Bid Loans.
"MARGIN" means, as to any LIBO Rate Competitive Bid Loan, the margin
(expressed as a percentage rate) to be added or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid Quote for such Loan.
"MARGIN STOCK" is defined in Regulation U of the Board of Governors of
the Federal Reserve System, 12 C.F.R. Part 221.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations or property of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its
obligations under this Agreement or the Notes, or (c) the validity or
enforceability of this Agreement or the Notes or the rights or remedies of the
Lenders hereunder or thereunder.
"MATERIAL SUBSIDIARY" means each Subsidiary of the Borrower, whether now
existing or hereafter created, which constitutes a "significant subsidiary" as
such term is defined in Regulation S-X of the Securities and Exchange Commission
as in effect on the Closing Date.
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<PAGE> 12
"MATURITY DATE" means the earlier of (a) November 5, 1997 or, if
extended as described in Section 2.13, then the date as so extended, and (b) the
date of termination in whole of the Commitments pursuant to Section 2.12 or
Section 6.1.
"MOODY'S" means Moody's Investors Services, Inc.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NEGOTIATED BID LOAN" means a Loan from a Lender to the Borrower
outstanding pursuant to this Agreement and made pursuant to the procedure set
forth in Section 2.4 (which Loan may exceed the individual Commitment of such
Lender).
"NEGOTIATED BID NOTE" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of EXHIBIT C hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
Negotiated Bid Loans made by such Lender.
"NOTES" means, collectively, the Competitive Bid Notes, the Negotiated
Bid Notes and the Syndicated Notes.
"OBLIGATIONS" means any and all obligations of the Borrower for the
payment of money hereunder or in respect hereof, whether absolute or contingent,
including without limitation, all obligations of the Borrower for the payment of
(i) principal and interest on the Loans and (ii) Facility Fees, expenses,
reimbursements and indemnifications hereunder.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED LIENS" means only the Liens permitted in clauses (i) through
(xii) of Section 5.2(b) hereof.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PLAN" means, at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"REGISTER" has the meaning specified in Section 8.5(c).
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<PAGE> 13
"REORGANIZATION" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16., .18, .19 or .20 of PBGC Reg.
Section 4043.
"REQUIRED LENDERS" means, (a) so long as any Lender has a Commitment
outstanding hereunder, Lenders holding 51% or greater of the aggregate
Commitments at such time (whether used or unused), and (b) if the Commitments
have been terminated, Lenders holding 51% or greater of the aggregate Loans
outstanding hereunder.
"RESPONSIBLE OFFICER" means the chief executive officer, the president,
the chief financial officer, or the treasurer of the Borrower.
"SINGLE EMPLOYER PLAN" means any plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"SUBSIDIARY" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Persons. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"SYNDICATED BORROWING" means a Borrowing comprised of Syndicated Loans.
"SYNDICATED LOAN" means a Loan from a Lender to the Borrower pursuant to
its Commitment established in Section 2.1. Each Syndicated Loan shall be either
a LIBO Rate Syndicated Loan or a Base Rate Loan.
"SYNDICATED NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of EXHIBIT A hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from Syndicated Loans
made by such Lender.
"TANGIBLE NET WORTH" means, as to any Person at any date, consolidated
total assets (less intangibles) less consolidated total liabilities of such
Person at such date.
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<PAGE> 14
"TAXES" has the meaning specified in Section 2.23(a).
"TOTAL CAPITALIZATION" means, as to any Person at any date, the sum of
Total Debt plus Equity of such Person at such date. Unless otherwise qualified,
all references to "Total Capitalization" shall refer to the Total Capitalization
of the Borrower and its Subsidiaries on a consolidated basis.
"TOTAL DEBT" means, as to any Person at any date, the aggregate amount
of all Debt of such Person. Unless otherwise qualified, all references to "Total
Debt" shall refer to the Total Debt of the Borrower and its Subsidiaries on a
consolidated basis.
"TYPE" of Loan refers to the manner of computing an interest charge on a
particular Syndicated Loan or Competitive Bid Loan. The Types of Syndicated
Loans are Base Rate Loans and LIBO Rate Syndicated Loans; and the Types of
Competitive Bid Loans are Fixed Rate Loans and LIBO Rate Competitive Bid Loans.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the work "from" means "from and including" and the words "to" and "until" mean
"to but excluding."
SECTION 1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistently applied,
except as otherwise stated herein.
ARTICLE 2
AMOUNTS AND TERMS OF THE COMMITMENTS AND LOANS
----------------------------------------------
SECTION 2.1 COMMITMENTS. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Syndicated Loans to the Borrower, at
any time and from time to time on and after the Effective Date and until the
Maturity Date, in an aggregate principal amount at any one time outstanding not
to exceed such Lender's Commitment subject, however, to the conditions that (i)
at no time shall (A) the sum of (x) the outstanding aggregate principal amount
of all Syndicated Loans made by all Lenders plus (y) the outstanding principal
amount of all Competitive Bid Loans made pursuant to this Agreement plus (z) the
outstanding principal amount of all Negotiated Bid Loans made pursuant to this
Agreement exceed (B) the sum of the Commitments and (ii) at all times the
outstanding aggregate principal amount of all Syndicated Loans made by each
Lender shall equal the product of (A) the percentage which its Commitment
represents of the aggregate Commitments multiplied by (B) the outstanding
aggregate principal amount of all Syndicated Loans. The Commitments may be
increased as provided in Section 2.14 and may be terminated or reduced from time
to time by the Borrower pursuant to Section 2.12.
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<PAGE> 15
(b) Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow Syndicated Borrowings, Competitive Bid Borrowings and Negotiated
Bid Loans pursuant to this Agreement, on and after the Effective Date and prior
to the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
(c) The proceeds of each Loan shall be used by the Borrower for general
corporate purposes, including, without limitation, liquidity support for the
Borrower's commercial paper programs.
SECTION 2.2 LOANS. (a) Each Syndicated Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; PROVIDED, HOWEVER, that the failure of any Lender to make any
Syndicated Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by any such other Lender). Each Competitive Bid Loan shall be made as
requested by the Borrower and in accordance with the procedure set forth in
Section 2.3. Each Negotiated Bid Loan shall be made as requested by the Borrower
and in accordance with the procedure set forth in Section 2.4. The Syndicated
Loans or Competitive Bid Loans comprising any Borrowing shall be (i) in the case
of a Competitive Bid Borrowing, in an aggregate principal amount which is an
integral multiple of $1,000,000 and not less than $5,000,000, subject to the
proviso in Section 2.3(c)(iii), and (ii) in the case of a Syndicated Borrowing,
in an aggregate principal amount which is an integral multiple of $1,000,000 and
not less than $10,000,000 (or an aggregate principal amount equal to the
remaining balance of the available Commitments).
(b) Each Competitive Bid Borrowing shall be comprised entirely of LIBO
Rate Loans or Fixed Rate Loans, and each Syndicated Borrowing shall be comprised
entirely of LIBO Rate Loans or Base Rate Loans, as the Borrower may request
pursuant to Section 2.3 or 2.5, as applicable. Borrowings of more than one Type
may be outstanding at the same time; PROVIDED, HOWEVER, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than thirty (30) LIBO Rate Syndicated Borrowings and/or
Competitive Bid Borrowings outstanding hereunder at any one time. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate Borrowings.
(c) Except for Negotiated Bid Loans, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 1:00 p.m., New York City time, and the Administrative Agent shall
by 3:00 p.m., New York City time, credit the amounts so received to the general
deposit account of the Borrower with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders. Competitive Bid Loans shall be made by the Lender or Lenders whose
Competitive Bid Quotes therefor are accepted pursuant to Section 2.3 in the
amount so accepted and Syndicated Loans shall be made by the Lenders pro rata in
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<PAGE> 16
accordance with Section 2.5. Negotiated Bid Loans shall be made available
directly to the Borrower by the Lender making such Negotiated Bid Loan in
accordance with procedures agreed to by such Lender with the Borrower. Unless
the Administrative Agent shall have received notice from a Lender prior to any
proposed Borrowing Date that such Lender will not make available to the
Administrative Agent such Lender's portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the Borrowing Date in accordance with this paragraph (c)
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date, and in the event Lenders
remain party to this Agreement pursuant to Section 2.13 with Commitments
expiring on the Existing Date, the Borrower shall not be entitled to request any
Borrowing if the Interest Period requested with respect thereto would end after
the Existing Date unless the sum of (i) the available amount of the Commitments,
plus (ii) the outstanding principal amount of Base Rate Borrowings, plus (iii)
Borrowings with Interest Periods ending on or prior to the Existing Date equals
or exceeds the amount of the Commitments expiring on the Existing Date.
SECTION 2.3 COMPETITIVE BID PROCEDURE. (a) Each Lender hereby agrees, on
the terms and conditions hereinafter set forth, to entertain requests from the
Borrower, from time to time on any Business Day during the period from the
Effective Date until the date seven (7) days prior to the Maturity Date to make
Competitive Bid Loans, PROVIDED that the aggregate principal amount of all Loans
outstanding at any one time owing to the Lenders shall not exceed the aggregate
amount of the Commitments in effect at such time. Each Lender may, but shall
have no obligation to, make such offers, and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth herein.
(b) The Borrower may request Competitive Bid Loans by delivering a duly
completed Competitive Bid Request substantially in the form of EXHIBIT D-1 to
the Administrative Agent by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission, not later than 11:00 a.m. (New York City
time) four (4) Business Days prior to the proposed Borrowing Date (in the case
of a LIBO Rate Competitive Bid Request), and not later than 3:00 p.m. (New York
City time) one (1) Business Day prior to the proposed Borrowing Date (in the
case of a Fixed Rate Competitive Bid Request). A Competitive Bid Request which
does not conform substantially to the form of EXHIBIT D-1 may be rejected by the
Administrative Agent in the Administrative Agent's sole
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<PAGE> 17
discretion and the Administrative Agent shall promptly notify the Borrower of
such rejection by facsimile transmission or by telephone, immediately confirmed
by facsimile transmission. Such Competitive Bid Request shall in each case refer
to this Agreement and specify (i) that the Competitive Bid Borrowing is being
requested pursuant to this Agreement, (ii) whether the Competitive Bid Borrowing
then being requested is to be comprised of LIBO Rate Loans or Fixed Rate Loans,
(iii) the proposed Borrowing Date for such Competitive Bid Borrowing (which
shall be a Business Day) and the amount of such requested Competitive Bid
Borrowing which shall be in a minimum principal amount of $5,000,000 and in
integral multiples of $1,000,000, and (iv) the Interest Period with respect
thereto (which may not end after the Maturity Date). Promptly after its receipt
of a Competitive Bid Request which is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier the Lenders (in the form set
forth in EXHIBIT D-2 attached hereto), on the terms and conditions of this
Agreement, to make Competitive Bid Quotes pursuant to the Competitive Bid
Request. The Borrower may request Competitive Bid Quotes for up to four separate
Interest Periods in a single Competitive Bid Request, provided that each
requested Competitive Bid Borrowing shall satisfy the minimum borrowing
requirement set forth above.
(c) (i) Each Lender may, in its sole discretion, make one or more
Competitive Bid Quotes to the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid Quote by a Lender must be received by the Administrative
Agent via facsimile, substantially in the form of EXHIBIT D-3 hereto, (1) in the
case of a LIBO Rate Competitive Bid Loan, not later than 9:30 a.m., New York
City time, three (3) Business Days before the proposed Competitive Bid Borrowing
comprised of LIBO Rate Loans and (2) in the case of a Fixed Rate Loan, not later
than 9:30 a.m., New York City time, on the Borrowing Date of a proposed
Competitive Bid Borrowing comprised of Fixed Rate Loans. Multiple bids will be
accepted by the Administrative Agent. Competitive Bid Quotes that do not conform
substantially to the form of EXHIBIT D-3 may be rejected by the Administrative
Agent acting in consultation with the Borrower, and the Administrative Agent
shall notify the Lender making such nonconforming bid of such rejection as soon
as practicable. Each Competitive Bid Quote shall refer to this Agreement and
specify (x) the principal amount (which shall be in a minimum principal amount
of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Bid Borrowing requested by the
Borrower) of the Competitive Bid Loan or Loans that the Lender is willing to
make to the Borrower, (y) the Competitive Bid Rate or Rates at which the Lender
is prepared to make the Competitive Bid Loan or Loans and (z) the Interest
Period and the last day thereof. A Competitive Bid Quote submitted by a Lender
pursuant to this paragraph (c)(i) shall be irrevocable.
(ii) The Administrative Agent shall promptly notify the Borrower
by telecopy of all the Competitive Bid Rates and the principal amount of each
Competitive Bid Loan in respect of which a Competitive Bid Quote was made and
the identity of the Lender that made each bid. The Administrative Agent shall
send a copy of all Competitive Bid Quotes to the Borrower for its records as
soon as practicable after completion of the bidding process set forth in this
Section 2.3.
(iii) The Borrower shall before 10:30 a.m. (New York City time)
three (3) Business Days before the proposed Borrowing Date in the case of a LIBO
Rate Competitive Bid
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Request and before 10:30 a.m. (New York City time) on the proposed Borrowing
Date in the case of a Fixed Rate Competitive Bid Request either, in its absolute
discretion:
(A) cancel such Competitive Bid Request by giving the
Administrative Agent telephonic notice to that effect, in which
event the Competitive Bid Loans requested thereby shall not be
made, or
(B) accept one or more of the offers made by the Lenders
pursuant to clause (i) above by giving telephonic notice
(immediately confirmed by execution and facsimile transmission of
a Competitive Bid Loan Confirmation) to the Administrative Agent
of the amount of Competitive Bid Loans to be made to the Borrower
and the Competitive Bid Quotes accepted by the Borrower with
respect thereto; PROVIDED THAT, the Borrower may not accept
offers for Competitive Bid Loans in an aggregate principal amount
in excess of the maximum principal amount requested in the
related Competitive Bid Request;
PROVIDED, HOWEVER, that (1) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in this paragraph
(c), (2) the Borrower shall not accept a bid made at a particular Competitive
Bid Rate if the Borrower has decided to reject a bid made at a lower Competitive
Bid Rate, (3) the aggregate amount of the Competitive Bid Quotes accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (4) if the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by the Borrower to exceed the amount specified in
the Competitive Bid Request, then the Borrower shall accept a portion of such
bid or bids in an amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bid Quotes accepted with
respect to such Competitive Bid Request, which acceptance, in the case of
multiple bids at the same Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such bid at such Competitive Bid Rate, and
(5) except pursuant to clause (4) above, no bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED FURTHER,
HOWEVER, that if a Competitive Bid Loan must be in an amount less than
$5,000,000 because of the provisions of clause (4) above, such Competitive Bid
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (4) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Borrower. A notice given by the Borrower pursuant to this
paragraph (c)(iii) shall be irrevocable.
(d) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid Quote has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loans in respect
of which its bid has been accepted.
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<PAGE> 19
(e) If the Administrative Agent shall elect to submit a Competitive Bid
Quote in its capacity as a Lender, it shall submit such bid directly to the
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Administrative Agent pursuant
to paragraph (c) above.
SECTION 2.4 NEGOTIATED BID LOANS. Each Lender agrees, on the terms and
conditions hereinafter set forth, to entertain requests from the Borrower, from
time to time during the period from the Effective Date to and including the
Maturity Date to make Negotiated Bid Loans to the Borrower; PROVIDED, that the
Lenders shall have no obligation to make any Negotiated Bid Loan, and the
Borrower shall have no obligation to accept any offer to make any Negotiated Bid
Loan. Each Negotiated Bid Loan shall be on such terms, including, but not
limited to, amount, maturity, interest rate, currency, prepayment terms,
Relevant Rate, Dollar Equivalent, place of payment, and compensation for
increased costs, as the Borrower and the applicable Lender shall agree in
connection with the making thereof; PROVIDED that the aggregate principal amount
in Dollars (or the Dollar Equivalent of any other currency) of all Loans
outstanding at any one time owing to the Lenders shall not exceed the aggregate
amount of the Commitments in effect at such time; PROVIDED, FURTHER, that no
Negotiated Bid Loan shall have a maturity date subsequent to the Maturity Date.
SECTION 2.5 SYNDICATED LOANS. In order to request a Syndicated
Borrowing, the Borrower shall give notice to the Administrative Agent in
writing, by facsimile, or by telephone promptly confirmed in writing, in the
form of a Notice of Syndicated Borrowing substantially in the form of EXHIBIT E
attached hereto given (x) with respect to a Syndicated Borrowing comprised of
Base Rate Loans, not later than 11:00 a.m. (New York City time) on the date of
the proposed Syndicated Borrowing, and (y) with respect to a Syndicated
Borrowing comprised of LIBO Rate Loans, not later than 11:00 a.m. (New York City
time) on the third Business Day prior to the Borrowing Date of the proposed
Syndicated Borrowing, by the Borrower to the Administrative Agent. Each such
Notice of Syndicated Borrowing shall specify (i) that the Syndicated Borrowing
is being requested pursuant to this Agreement, (ii) the proposed Borrowing Date
of such Syndicated Borrowing (which shall be a Business Day); (iii) the
principal amount of such Syndicated Borrowing; (iv) the Type of Syndicated
Borrowing; and (v) in the case of a Syndicated Borrowing comprised of LIBO Rate
Loans, the initial Interest Period for such Syndicated Borrowing. If no election
of a Type of Syndicated Borrowing is specified in any such Notice of Syndicated
Borrowing, the Borrower shall be deemed to have requested a Syndicated Borrowing
comprised of Base Rate Loans. If no Interest Period is specified in any such
Syndicated Loan Request with respect to a Syndicated Borrowing comprised of LIBO
Rate Loans, the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall promptly advise the Lenders
in writing of any Notice of Syndicated Borrowing given pursuant to this Section
2.5 and of each such Lender's portion of the requested Syndicated Borrowing.
SECTION 2.6 VOLUNTARY CONVERSION AND CONTINUATION OF SYNDICATED LOANS.
The Borrower may elect to Convert a Syndicated Borrowing of one Type into a
Syndicated Borrowing of another Type or to continue a Syndicated Borrowing
comprised of LIBO Rate Loans by written notice to the Administrative Agent (i)
not later than 12:00 noon (New York City time), one (1)
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Business Day prior to conversion in the case of the Conversion of a Syndicated
Borrowing comprised of LIBO Rate Loans to a Syndicated Borrowing comprised of
Base Rate Loans, and (ii) not later than 12:00 noon (New York City time) three
(3) Business Days prior to Conversion or continuation in the case of a
Conversion of a Syndicated Borrowing comprised of Base Rate Loans to a
Syndicated Borrowing comprised of LIBO Rate Loans or a continuation of any
Syndicated Borrowing comprised of LIBO Rate Loans for an additional Interest
Period, subject in each case to the following:
(a) each Conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Loans comprising the Converted or continued Syndicated Borrowing;
(b) if less than all of the outstanding principal amount of a
Syndicated Borrowing shall be Converted or continued, the aggregate
principal amount of such Converted or continued Syndicated Borrowing
shall be a minimum amount of $10,000,000 and in integral multiples of
$1,000,000;
(c) a LIBO Rate Syndicated Borrowing may only be Converted or
continued on the last day of the Interest Period with respect thereto;
and
(d) no Interest Period may be selected with respect to any
Syndicated Borrowing that would end later than the Maturity Date or, if
as a result thereof, more than thirty (30) Borrowings comprised of LIBO
Rate Loans and/or Competitive Bid Loans would be outstanding hereunder.
Each notice pursuant to this Section 2.6 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the
Syndicated Borrowing that the Borrower requests be Converted or continued, (ii)
whether such Syndicated Borrowing is to be Converted to or continued as a
Syndicated Borrowing comprised of LIBO Rate Loans or a Syndicated Borrowing
comprised of Base Rate Loans, (iii) if such notice requests a Conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Syndicated Borrowing is to Converted or continued as LIBO Rate Loans, the
Interest Period with respect thereto. If no Interest Period is specified in such
notice with respect to a Syndicated Borrowing comprised of LIBO Rate Loans, the
Borrower shall be deemed to have requested an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders in writing of any
notice given pursuant to this Section 2.6 and of each such Lender's portion of
any Converted or continued Syndicated Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.6 to continue any Syndicated
Borrowing comprised of LIBO Rate Loans prior to the expiration of the relevant
Interest Period with respect thereto, such Syndicated Borrowing shall convert to
a Borrowing comprised of Base Rate Loans on the last day of such Interest
Period.
SECTION 2.7 FEES. (a) The Borrower shall pay to each Lender, through the
Administrative Agent, a facility fee (the "Facility Fee") equal to 0.055% per
annum multiplied by
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<PAGE> 21
such Lender's Commitment, whether used or unused, payable from the Closing Date
through and including the Maturity Date. The Facility Fee shall be payable
quarterly in arrears on the date of the close of each fiscal quarter of the
Borrower during the term of each Lender's Commitment, commencing December 31,
1996, and continuing thereafter on each such quarterly closing date, and on the
Maturity Date.
(b) The Borrower agrees to pay to the Administrative Agent and the
Managing Agents, for their own respective accounts, such fees at the times and
in the amounts agreed to by such parties from time to time.
(c) All Facility Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, as appropriate,
among the Lenders. Once paid in accordance with this Section 2.7, the fees shall
be non-refundable in the absence of manifest error.
SECTION 2.8 REPAYMENT OF LOANS; NOTES. (a) The Borrower shall repay the
unpaid principal amount of each Loan (i) in the case of a Competitive Bid Loan,
on the last day of the Interest Period applicable to such Loan, (ii) in the case
of a Negotiated Bid Loan, on the date agreed to with the relevant Lender for
repayment of such Loan, and (iii) in the case of a Syndicated Loan, on the
Maturity Date. Each Loan shall bear interest from the date thereof until payment
in full as set forth in Section 2.9.
(b) Each Syndicated Loan, Competitive Bid Loan and Negotiated Bid Loan
outstanding to a Lender pursuant to this Agreement shall be evidenced by a
Syndicated Note, Competitive Bid Note, or Negotiated Bid Note, respectively,
with appropriate insertions. Each Lender is hereby authorized to record the date
and amount of each Loan made by such Lender, the maturity date thereof, the date
and amount of each payment of principal thereof and the interest rate with
respect thereto on the schedule annexed to and constituting part of the relevant
Note or in the books and records of such Lender in such manner as is reasonable
and customary, and any such recordation, together with the records of the
Administrative Agent, in the absence of manifest error, shall constitute prima
facie evidence of the accuracy of the information so recorded, PROVIDED that the
failure to make any such recordation shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Note shall be dated the Closing Date
and each Loan evidenced thereby shall bear interest as specified in Section 2.9.
SECTION 2.9 INTEREST ON LOANS. The Borrower shall pay interest on the
unpaid principal amount of each Loan made by a Lender from the Borrowing Date
with respect to such Loan until such principal amount shall be paid in full, at
one of the following rates per annum selected by the Borrower:
(i) BASE RATE LOANS. In the case of a Base Rate Loan, a rate per
annum equal at all times to the Base Rate in effect from time to time,
payable quarterly in arrears on the date of the close of the fiscal
quarter of the Borrower, commencing December 31, 1996, and continuing
thereafter on each such quarterly closing date during such period that
such Base
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<PAGE> 22
Rate Loan is outstanding and on the date such Base Rate Loan shall be
Converted or paid in full;
(ii) LIBO RATE SYNDICATED LOANS. In the case of a LIBO Rate
Syndicated Loan, a rate per annum equal at all times during each
Interest Period for such Syndicated Loan to the sum of the LIBO Rate for
such Interest Period for such Loan plus the Applicable Margin, payable
on the last day of such Interest Period and, if such Interest Period is
more than three months in duration, on each day which occurs during such
Interest Period every three months from the first day of such Interest
Period;
(iii) LIBO RATE COMPETITIVE BID LOANS. In the case of a LIBO Rate
Competitive Bid Loan, a rate per annum equal at all times during the
Interest Period for such Competitive Bid Loan equal to the LIBO Rate for
such Interest Period plus (or minus) the Margin agreed to with respect
to such Loan in the Competitive Bid Quote relating thereto, payable on
the last day of such Interest Period and, if such Interest Period is
more than three months in duration, on each day which occurs during such
Interest Period every three months from the first day of such Interest
Period;
(iv) FIXED RATE LOANS. With respect to Fixed Rate Loans, for the
Interest Period relating to such Fixed Rate Loan, at the fixed rate of
interest per annum agreed to for such Competitive Bid Loan in the
Competitive Bid Quote relating thereto, payable on the last day of such
Interest Period and, if such Interest Period is more than 90 days, each
day which occurs during such Interest Period every 90 days from the
first day of such Interest Period; and
(v) NEGOTIATED BID LOANS. With respect to Negotiated Bid Loans,
at the per annum interest agreed to by the Lender making such Loan and
the Borrower with respect thereto, payable on the dates agreed to by the
relevant Lender and the Borrower with respect thereto.
SECTION 2.10 DEFAULT INTEREST. If the Borrower shall default in the
payment of principal of any Loan becoming due hereunder (whether at stated
maturity, by acceleration or otherwise) such principal amount shall bear
interest, from the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all times to the greater
of (x) the Base Rate in effect from time to time plus two percent (2%) per annum
and (y) in the case of a LIBO Rate Loan, Fixed Rate Loan or Negotiated Bid Loan,
the rate of interest otherwise applicable to such Loan plus two percent (2%) per
annum, or in the case of a Negotiated Bid Loan, as may otherwise have been
agreed in writing by the Borrower and the relevant Lender.
SECTION 2.11 INTEREST RATE DETERMINATION AND PROTECTION. (a) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Administrative Agent with respect
to any Syndicated Borrowing hereunder.
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<PAGE> 23
(b) Any change in the interest rate on a Base Rate Loan resulting from a
change in the Base Rate shall become effective as of the opening of business on
the day on which such change in the Base Rate is announced. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change; PROVIDED, that any failure to
do so shall not relieve the Borrower of any liability hereunder.
(c) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower in the absence of manifest error.
SECTION 2.12 TERMINATION OR REDUCTION OF THE COMMITMENTS. (a) The
Commitments shall automatically terminate on the Maturity Date unless extended
pursuant to Section 2.13.
(b) The Borrower shall have the right, upon at least five (5) Business
Days' prior written notice to the Administrative Agent and without penalty, to
permanently terminate in whole or permanently reduce in part the Commitments,
PROVIDED, that (i) each partial reduction of the Commitments shall be in the
aggregate amount of $5,000,000 and in an integral multiple of $1,000,000, and
(ii) no such termination or reduction shall be made which would reduce the
aggregate Commitments to an amount less than the aggregate outstanding principal
amount of the then outstanding Loans.
(c) Each reduction of the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.13 EXTENSION OF COMMITMENTS. (a) The Borrower may, by written
notice to the Administrative Agent (which shall promptly deliver a copy to each
of the Lenders), given not more than forty-five (45) days prior to the then
scheduled Maturity Date (the "Existing Date"), request that the Lenders extend
the Maturity Date for an additional 364-day period. Each Lender shall, by notice
to the Borrower and the Administrative Agent given within fifteen (15) Business
Days after receipt of such request, advise the Borrower whether or not such
Lender consents to the extension request (and any Lender which does not respond
during such 15-Business Day period shall be deemed to have advised the Borrower
that it will not agree to such extension). In connection with any request for an
extension of the Maturity Date hereunder, each Lender shall have the absolute
discretion to renew or extend its Commitment or decline to do so or to condition
its consent to such an extension upon a modification of the terms and conditions
of such Commitment and the Borrower hereby agrees to negotiate any such terms in
good faith.
(b) In the event that, on the 15th Business Day after receipt of the
notice delivered pursuant to subsection (a) above, not all of the Lenders shall
have agreed to extend their Commitments, the Borrower shall notify the
consenting Lenders ("Consenting Lenders") of the amount of the
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<PAGE> 24
Commitments of the non-extending Lenders ("Non-Consenting Lenders") and each
such Consenting Lender shall, by notice to the Borrower and the Administrative
Agent given within five (5) Business Days of such notice, advise the Borrower
whether or not such Lender wishes to purchase all or a portion of the
Commitments of the Non-Consenting Lenders (and any Lender which does not respond
during such 5-Business Day period shall be deemed to have rejected such offer).
In the event that more than one Consenting Lender agrees to purchase all or a
portion of such Commitments, the Borrower and the Managing Agents shall allocate
such Commitments among such Consenting Lenders so as to preserve, to the extent
possible, the relative pro rata shares of the Consenting Lenders of the
Commitments prior to such extension request. If Consenting Lenders do not elect
to assume all of the Commitments of the Non-Consenting Lenders, the Borrower
shall have the right to arrange for one or more banks (any such bank being
called an "New Lender") to purchase the Commitment of any Non-Consenting Lender.
Each Non-Consenting Lender shall assign its Commitment and the Loans outstanding
hereunder to the Consenting Lender or New Lender purchasing such Commitment in
accordance with Section 8.5, in return for payment in full of all principal,
interest and other amounts owing to such Non-Consenting Lender hereunder, on or
before the Existing Date and, as of the effective date of such assignment, shall
no longer be a party hereto, provided that each New Lender shall be subject to
the approval of the Administrative Agent (which approval shall not be
unreasonably withheld). If (and only if) Lenders (including New Lenders) holding
Commitments representing at least 75% of the aggregate Commitments on the date
of such extension request shall have agreed to such extension by the Existing
Date (the "Continuing Lenders"), then (i) the Maturity Date shall be extended
for an additional 364 days and (ii) the Commitment of any Non-Consenting Lender
which has not been assigned to a Consenting Lender or a New Lender on or before
the Existing Date shall terminate (with the result that the amount of the
aggregate Commitments shall be decreased by the amount of such Commitment), and
all Loans of such Non-Consenting Lender shall become due and payable, together
with all interest accrued thereon and all other amounts owed to such
Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender
without giving effect to any extension of the Maturity Date.
(c) The effective date of any extension of the Maturity Date shall be
the Existing Date. The Administrative Agent shall enter any modifications made
to the Commitments pursuant to this Section 2.13 in the Register maintained
pursuant to Section 8.5(c).
SECTION 2.14 INCREASE OF COMMITMENTS. (a) The Borrower may from time to
time, by written notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders), request that the Commitments be
increased by an amount that is not less than $50,000,000 and an integral
multiple of $10,000,000 and that will not result in the Commitments exceeding
$400,000,000. Each such notice shall set forth (i) the requested amount of the
increase in the Commitments and (ii) the date on which such increase is to
become effective (which shall be not fewer than forty-five (45) nor more than
sixty (60) days after the date of such notice), and shall offer each Lender the
opportunity to increase its Commitment by its ratable share, based on the pro
rata amounts of the Commitments as of the date of the requested increase. Each
Lender shall, by notice to the Borrower and the Administrative Agent given not
more than fifteen (15) Business Days after the date of the Borrower's notice,
either agree to increase its Commitment by all or a portion of the
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<PAGE> 25
offered amount or decline to increase its Commitment (and any Lender that does
not deliver such a notice within such period of fifteen (15) Business Days shall
be deemed to have declined to increase its Commitment).
(b) In the event that, on the 15th Business Day after the Borrower shall
have delivered a notice pursuant to paragraph (a) above, the Lenders shall have
agreed pursuant to paragraph (a) above to increase their Commitments by an
aggregate amount less than the increase in the Commitments requested by the
Borrower, the Borrower shall offer to the Lenders who have agreed to the ratable
increase (the "Increasing Lenders"), the right to increase their Commitments by
such unsubscribed amount. Each such Increasing Lender shall, by notice to the
Borrower and the Administrative Agent given not more than ten (10) Business Days
after such request, advise the Borrower whether it has elected to an additional
increase of all or any portion of such unsubscribed amount (and any Increasing
Lender that does not deliver such a notice within such period of ten (10)
Business Days shall be deemed to have declined to further increase its
Commitment). In the event that more than one Increasing Lender elects to further
increase its Commitment, the Borrower and the Managing Agents shall allocate
such additional amount so as to preserve, to the extent possible, the relative
pro rata shares of the Increasing Lenders prior to such request. If the
Increasing Lenders do not subscribe for the total unsubscribed amount, the
Borrower shall have the right to arrange for one or more banks (any such bank
being called an "Augmenting Lender") to extend Commitments in an aggregate
amount equal to the unsubscribed amount, provided that each Augmenting Lender
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld).
(c) If (and only if) Lenders (including Augmenting Lenders) shall have
agreed to increase their Commitments or to extend new Commitments in an
aggregate amount not less than $50,000,000, such increases and such new
Commitments shall become effective on the date specified in the notice delivered
by the Borrower pursuant to paragraph (a); provided that the Borrower and any
Augmenting Lender shall deliver such Notes, opinions, certificates and other
documentation as may be requested by the Administrative Agent as of such date.
The Administrative Agent shall enter any modifications made to the Commitments
in the Register maintained pursuant to Section 8.5(c).
SECTION 2.15 OPTIONAL PREPAYMENTS. (a) The Borrower shall have the
right, upon same Business Day's notice to the Administrative Agent (received by
10:00 a.m. (New York City time)) with respect to Syndicated Borrowings comprised
of Base Rate Loans and at least three (3) Business Days' prior written notice to
the Administrative Agent with respect to Syndicated Borrowings comprised of LIBO
Rate Loans and with respect to Competitive Bid Loans, to prepay the outstanding
amount of such Syndicated Borrowings or Competitive Bid Borrowing, without
premium or penalty, in whole or in part together with accrued interest to the
date of such prepayment on the amount prepaid; PROVIDED, that any prepayment of
any Syndicated Borrowing comprised of LIBO Rate Loans or Competitive Bid
Borrowings shall be made on, and only on, the last day of an Interest Period for
such Borrowing unless accompanied by any payment imposed in connection with such
prepayment pursuant to Section 2.19; and PROVIDED, FURTHER, that each partial
prepayment shall be in an aggregate
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<PAGE> 26
principal amount not less than $10,000,000 and in integral multiples of
$1,000,000. The Borrower shall not have the right to prepay any Negotiated Bid
Loan except as agreed by the relevant Lender.
(b) Each notice of prepayment shall specify the prepayment date and the
principal amount of the Borrowing (or portion thereof) to be prepaid and shall
be irrevocable. The Administrative Agent shall promptly notify the Lenders of
any notice received pursuant to this Section 2.15.
SECTION 2.16 INABILITY TO DETERMINE INTEREST RATE. In the event that (i)
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the interbank Eurodollar market, adequate and reasonable means do not
exist for ascertaining the LIBO Rate applicable for any requested Interest
Period with respect to a Syndicated Borrowing comprised of LIBO Rate Loans
requested hereunder or (ii) the Required Lenders shall have informed the
Administrative Agent in writing that the LIBO Rate will not adequately and
fairly reflect the cost to such Lenders of making or maintaining its LIBO Rate
Syndicated Loans during the Interest Period, the Administrative Agent shall
forthwith give telecopy notice, confirmed in writing, of such determination to
the Borrower and the Lenders at least one day prior to the first day of such
Interest Period for such Syndicated Borrowing comprised of LIBO Rate Loans. If
such notice is given, (x) any requested Syndicated Borrowing comprised of LIBO
Rate Loans may be made as a Base Rate Borrowing if the Borrower wishes to make
the Borrowing on such terms and so notifies the Administrative Agent; (y) any
Base Rate Borrowings that were to have been Converted to Syndicated Borrowings
comprised of LIBO Rate Loans shall be continued as Base Rate Borrowings and (z)
any outstanding Syndicated Borrowings comprised of LIBO Rate Loans shall be
Converted, on the last day of such Interest Period, to Base Rate Borrowings.
Until such notice has been withdrawn by the Administrative Agent or the Required
Lenders, as the case may be, no further Syndicated Borrowings comprised of LIBO
Rate Loans shall be made or continued as such nor shall the Borrower have the
right to Convert Base Rate Borrowings to Syndicated Borrowings comprised of LIBO
Rate Loans.
SECTION 2.17 INCREASED COSTS. (a) In the event that (i) the introduction
of or any change (including, without limitation, any change by way of imposition
or increase of the Eurocurrency Reserve Requirements) in or in the
interpretation of any law or regulation or (ii) the compliance with any request
or directive from any central bank or other Governmental Authority (whether or
not having the force of law), made subsequent to the date hereof:
(x) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, the Notes or any LIBO Rate Loan made by
it, or change the basis of taxation of payments to the Lender in respect
thereof (except for taxes covered by Section 2.23 and changes in the
rate of tax on the overall net income of such Lender);
(y) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds
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<PAGE> 27
by, any office of such Lender which is not otherwise included in the
determination of the LIBO Rate hereunder; or
(z) shall impose on any Lender any other condition;
and the result of any of the foregoing is to increase the cost of such Lender,
by an amount which the Lender reasonably deems to be material, of making,
Converting into, continuing or maintaining LIBO Rate Loans or to reduce any
amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall promptly pay to such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this section, it shall promptly notify the Borrower of the
event by reason of which it has become so entitled (with a copy to the
Administrative Agent). A certificate setting forth in reasonable detail the
calculation of any additional amounts payable pursuant to this section
(PROVIDED, HOWEVER, that such certificate need not disclose information not made
available to the public), submitted by any Lender to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder for a period of one year.
(b) In the event that any Lender shall have determined that the
introduction of or any change (other than any change by way of imposition or
increase of the Eurocurrency Reserve Requirements), in any law or regulation
regarding capital adequacy or in the interpretation or application of or
compliance by any Lender or any affiliate of a Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such Lender's or such
affiliate's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such affiliate could have achieved but for such
change or compliance (taking into consideration such Lender's or such
affiliate's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor (which request shall set forth in reasonable detail the
calculation of such additional amount; PROVIDED, HOWEVER, that such request need
not disclose information not made available to the public), the Borrower shall
pay to such Lender such additional amount as will compensate such Lender for
such reduction.
(c) Notwithstanding the foregoing, each Lender shall make written demand
on the Borrower for indemnification or compensation pursuant to paragraphs (a)
and (b) of this Section 2.17 within thirty (30) Business Days after such Lender
receives actual notice or obtains actual knowledge of the promulgation of a law,
rule, order or interpretation or occurrence of another event giving rise to a
claim pursuant to such paragraphs. In the event that any Lender fails to give
the Borrower the notice within the time limitation set forth in the preceding
sentence, the Borrower shall have no obligation to pay such claim for
indemnification or compensation accruing prior to the ninetieth
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<PAGE> 28
(90th) day preceding such written demand. Nothing in this Agreement shall
prevent any Lender from delivering successive demands for such indemnification
or compensation pursuant hereto.
(d) Each Lender agrees that it will use reasonable efforts to designate
an alternate lending office with respect to any of its Loans affected by the
matters or circumstances described in paragraphs (a) and (b) of this Section
2.17, Section 2.18 or Section 2.23 to reduce the liability of the Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to the Lender as determined by such Lender in its sole
discretion.
SECTION 2.18 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make LIBO Rate
Syndicated Loans or to continue to fund or maintain LIBO Rate Loans hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower (with
a copy to the Administrative Agent), (i) any obligation of such Lender to make
or maintain any LIBO Rate Loans and to Convert Base Rate Loans into LIBO Rate
Syndicated Loans shall terminate, (ii) all LIBO Rate Syndicated Loans then
outstanding, if any, shall be Converted automatically, on the last day of the
Interest Period therefor, or within such earlier period as required by law, to
Base Rate Loans, (iii) the Borrower shall forthwith prepay in full all LIBO Rate
Competitive Bid Loans of such Lender then outstanding, together with interest
accrued thereon, and (iv) if the result any of the foregoing is to increase the
cost to such Lender by an amount which such Lender reasonably deems to be
material, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor (which request shall set
forth in reasonable detail the calculation of such additional amount; PROVIDED,
HOWEVER, that such request need not disclose information not made available to
the public) the Borrower shall pay to such Lender such additional amount.
SECTION 2.19 INDEMNITY. The Borrower agrees to indemnify the Lenders and
to hold the Lenders harmless from any actual and direct loss, cost or expense
which the Lenders may sustain or incur as a consequence of (a) default by the
Borrower in payment when due (at maturity, acceleration or otherwise) of the
principal amount of or interest on any LIBO Rate Loan or Fixed Rate Loan, (b)
default by the Borrower in making a borrowing of, Conversion into or
continuation of a LIBO Rate Loan or Fixed Rate Loan after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making of a prepayment of LIBO Rate Loans or Fixed Rate
Loans on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss or expense
arising from the reemployment of funds obtained by any Lender or from fees
payable to terminate the deposits from which such funds were obtained; PROVIDED,
that the foregoing indemnification shall not apply to any indirect, special,
incidental or consequential damages. This covenant shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder.
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<PAGE> 29
SECTION 2.20 PRO RATA TREATMENT. The parties agree that each Syndicated
Borrowing, each payment or prepayment of principal of any Syndicated Borrowing,
each payment of interest on the Syndicated Loans, each payment of the Facility
Fees with respect to each Lender's Commitment, each reduction of the Commitments
and each refinancing of any Borrowing with a Syndicated Borrowing of any Type,
shall be allocated pro rata among the Lenders in accordance with their
respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Syndicated Loans) after giving effect to any payment or prepayment
or termination or assignment of a Lender's Commitment pursuant to this
Agreement; provided that, in the event of any reallocation of Commitment
percentages due to a non-ratable increase pursuant to Section 2.14, payments of
any Syndicated Borrowings shall be allocated among the Lenders participating in
such Borrowing in accordance with the respective principal amounts of their
outstanding Loans comprising such Syndicated Borrowing. Each payment of
principal of any Competitive Bid Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Bid Loans comprising such
Borrowing. Each payment of interest on any Competitive Bid Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Bid Loans comprising such Borrowing. Each payment of
principal and interest on any Negotiated Bid Loan shall be made solely to the
Lender making such Loan on the terms and conditions as shall be agreed to by the
Borrower and such Lender. For purposes of determining the available Commitments
of the Lenders at any time, each outstanding Competitive Bid Borrowing or
Negotiated Bid Loan shall be deemed to have utilized the Commitments of the
Lenders (including those Lenders which shall not have made Loans as part of such
Competitive Bid Borrowing or such Negotiated Bid Loan) pro rata in accordance
with such respective Commitments. Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.21 SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or through a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Syndicated Loan or Loans as
a result of which the unpaid principal portion of the Syndicated Loans, as
applicable, of such Lender shall be proportionately less than the unpaid
principal portion of the Syndicated Loans, as applicable, of any other Lender,
it shall be deemed simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the purchase price for,
a participation in the Syndicated Loans of such other Lender, so that the
aggregate unpaid principal amount of the Syndicated Loans and participations in
the Syndicated Loans held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Syndicated Loans then outstanding as
the principal amount of its Syndicated Loans prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Syndicated Loans outstanding prior to such exercise of banker's lien, setoff
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<PAGE> 30
or counterclaim or other event; PROVIDED, HOWEVER, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.21 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Syndicated Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Syndicated Loan
directly to the Borrower in the amount of such participation.
SECTION 2.22 PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Loan or any Facility Fees or other
amounts) hereunder (other than with respect to any Negotiated Bid Loan) not
later than 3:00 p.m. (New York City) time on the date when due in dollars to the
Administrative Agent in immediately available funds. The Borrower shall make
each payment in respect of a Negotiated Bid Loan, including any such Loan
denominated in a currency other than United States dollars, not later than 3:00
p.m. (local time at the place of payment) on the day when due to or for the
account of the Lender making such Loan at such location as agreed by the
Borrower and such Lender in connection with the making of such Negotiated Bid
Loan and in such funds as are at the time customary in such location for the
settlement of international transactions in such currency, or upon such other
terms as such Lender and the Borrower shall agree in connection with the making
thereof.
(b) Whenever any payment hereunder shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall be included in the
computation of interest or Facility Fees, as applicable.
(c) All computations of interest in respect of any Syndicated Loans or
Competitive Bid Loans shall be made by the Lenders on the basis of a 360-day
year for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.
(d) All computations of interest in respect of any Negotiated Bid Loan
shall be on such basis as the Lender making such Loan and the Borrower shall
agree in connection with the arrangement thereof, but, in the event of any
dispute, shall be on the basis of a 360-day year for the actual number of days
(including the first day but excluding the last day) elapsed.
(e) All computations 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, for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such Facility Fees are payable.
(f) For purposes of this Article 2, the equivalent in United States
Dollars (the "Dollar Equivalent") of any Negotiated Bid Loan in a currency other
than United States Dollars shall be
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<PAGE> 31
determined using the rate therefor (the "Relevant Rate") agreed to between the
Borrower and the Lender in connection with the arrangement of such Negotiated
Bid Loan.
SECTION 2.23 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes (including without limitation, withholding taxes), levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding, in the case of the Administrative Agent, any Managing Agent or any
Lender, net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent, any Managing Agent or any Lender as
a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Administrative Agent,
any Managing Agent or any Lender (excluding a connection arising solely from the
Administrative Agent, such Managing Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any of the Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent, any Managing Agent or any Lender hereunder or under
any of the Notes, the amounts so payable to the Administrative Agent, such
Managing Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent, such Managing Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are payable by the Borrower as promptly as possible thereafter the
Borrower shall send to the Administrative Agent and the relevant Managing Agent
or Lender a copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, any
Managing Agent or any Lender the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent, any such
Managing Agent and any such Lender for any incremental taxes, interest or
penalties that may become payable by any of them as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder
for a period of one year.
(b) If any Lender is not incorporated under the laws of the United
States of America or a state thereof, such Lender agrees that it will deliver to
the Borrower (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form.
Each such Lender also agrees to deliver to the Borrower two further copies of
the said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower, and such extensions or renewals thereof as may reasonably be requested
by the Borrower, unless in any such case an event (including, without
limitation, any change in treaty, law or
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<PAGE> 32
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower. Each such Lender shall
certify (i) in the case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes and (ii) in the case of a Form W-8 or W-9, that it
is entitled to an exemption from United States backup withholding tax.
SECTION 2.24 ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES. In
the event that any Lender shall have delivered a notice or certificate pursuant
to Section 2.17 or 2.18, or the Borrower shall be required to make additional
payments to any Lender under Section 2.23, the Borrower shall have the right, at
its own expense, upon notice to such Lender and the Administrative Agent, to
require such Lender to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 8.5) all its interests,
rights and obligations under this Agreement to another financial institution
selected by the Borrower with the consent of the Managing Agents (which consent
will not be unreasonably withheld) which financial institution shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the Borrower
or the assignee, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such termination or assignment the
principal of and interest accrued to the date of payment on the Loans made by it
hereunder and all other amounts accrued for its account or owed to it hereunder
or under the Notes, including without limitation all amounts owing to such
Lender pursuant to Section 2.19.
ARTICLE 3
CONDITIONS OF LENDING
---------------------
SECTION 3.1 INITIAL CONDITIONS PRECEDENT. The obligation of each Lender
to make its initial Syndicated Loan and the right of the Borrower to request the
making of the initial Negotiated Bid Loan or Competitive Bid Loan are subject to
the conditions precedent that the Administrative Agent shall have received on or
before the earlier of the date of the initial Syndicated Loan or the making of
the initial Negotiated Bid Loan or Competitive Bid Loan the following, each in
form and substance satisfactory to the Lenders:
(a) A duly executed counterpart of this Agreement;
(b) The Notes of the Borrower, each duly executed and delivered by
the Borrower;
(c) A duly executed certificate of the Secretary or Assistant
Secretary of the Borrower which certificate shall certify: (i) the names and
true signatures of the officers of the Borrower, authorized to sign this
Agreement, the Notes and the other documents contemplated hereby; (ii) the
by-laws of the Borrower; and (iii) a copy of the resolutions of the Borrower's
Board of Directors,
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which shall be attached to such certificate and which such certificate shall
state have not been amended, modified, revoked or rescinded, authorizing (a) the
execution, delivery and performance of this Agreement and the Notes and (b) the
Borrowings contemplated hereunder;
(d) A copy of the Certificate of Incorporation of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware;
(e) A good standing certificate for the Borrower certified as of a
recent date by the Secretaries of State of Delaware and Florida;
(f) A favorable opinion of Sullivan & Cromwell, counsel to the
Borrower, substantially in the form of EXHIBIT F-1 attached hereto, and a
favorable opinion of corporate counsel to the Borrower, substantially in the
form of EXHIBIT F-2 attached hereto;
(g) A certificate signed by a duly authorized officer of the Borrower
substantially in the form of EXHIBIT G attached hereto, stating that:
(i) The representations and warranties contained in Section 4.1
hereof are true and correct on and as of the Effective Date as though
made on and as of such date;
(ii) To the best of such officer's knowledge, no event has
occurred and is continuing which constitutes a Default or an Event of
Default; and
(iii) The Existing Credit Facilities have been paid in full and
canceled as of the Effective Date;
(h) Evidence satisfactory to the Managing Agents of the termination
of the Existing Credit Facilities and repayment of any outstanding indebtedness
thereunder; and
(i) Payment to the Managing Agents and their Affiliates of any fees
agreed to be paid by the Borrower in connection with the structuring and
syndication of the Facilities.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN; REPRESENTATIONS AND
WARRANTIES. The obligation of each Lender to make any Loan shall be subject to
the further conditions precedent that on the date of such Loan the following
statements shall be true, and the acceptance by the Borrower of the proceeds of
any Loan shall be deemed to constitute a representation and warranty by the
Borrower that, as of the date of such Loan, the following statements are,
respectively, true:
(a) The representations and warranties contained in Section 4.1 (other
than, in the case of any Loan made after the Effective Date, the second sentence
of Section 4.1(e)) are correct on and as of the date thereof as though made on
and as of such date;
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<PAGE> 34
(b) No event has occurred and is continuing, or would result from such
Loan, which constitutes a Default or an Event of Default; and
(c) After giving effect to the making of such Loan, the aggregate
principal amount of all Loans outstanding owing to the Lenders under this
Agreement will not exceed the aggregate amount of the Commitments at such time.
In addition to the foregoing, on any Borrowing Date with respect to any
Loan requested by the Borrower when the outstanding principal amount of the
Loans (either before or after giving effect to such Loan) exceeds seventy-five
percent (75%) of the aggregate Commitments, the Borrower shall deliver to the
Administrative Agent a certificate signed by a duly authorized officer of the
Borrower indicating the outstanding amount of all Negotiated Bid Loans,
including the currency and Relevant Rate with respect thereto, and certifying
that the statement in subsection 3.2(c) is true and correct.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
in good standing under the laws of the State of Florida.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene the (i)
Borrower's charter or by-laws or (ii) applicable law or (iii) any material
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or regulatory body or any other Person
is required for the due execution, delivery and performance by the Borrower of
this Agreement and the Notes.
(d) This Agreement is, and each of the Notes when delivered hereunder
will be, the legal, valid and binding obligation of the Borrower enforceable
against it in accordance with its respective terms except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
(e) The consolidated balance sheet of the Borrower and its Subsidiaries
as of June 30, 1996, and the related statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, copies of which
have been furnished to the Lenders, fairly present the
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<PAGE> 35
consolidated financial condition of the Borrower and its Subsidiaries as at such
date and the results of the operations of the Borrower and its Subsidiaries for
the fiscal year ended on such date, all in accordance with GAAP consistently
applied. Since June 30, 1996, there has been no material adverse change in such
condition or operations.
(f) Except as set forth on SCHEDULE 4.1, there is no pending or, to the
Borrower's knowledge, threatened action or proceeding affecting the Borrower or
any of its Subsidiaries before any court, governmental agency or arbitrator
which would reasonably be expected to have a Material Adverse Effect.
(g) The Borrower is not engaged in the business of extending credit or
in the business of purchasing or carrying Margin Stock, and the borrowings
hereunder will not be used for the purpose of purchasing or carrying Margin
Stock.
(h) No Reportable Event has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect to
any Plan, and each Plan has, during this five-year period, complied in all
material respects with the applicable provisions of ERISA and the Code. There is
no outstanding Lien under ERISA or the Code with respect to any Plan. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvency.
(i) To the Borrower's knowledge, each of the representations and
warranties set forth in paragraphs (i) through (v) of this paragraph is true and
correct with respect to each parcel of real property owned or operated by the
Borrower and its Subsidiaries (the "Properties"), except to the extent that the
facts and circumstances giving rise to any such failure to be so true and
correct would not reasonably be expected to have a Material Adverse Effect:
(i) The Properties do not contain, and have not previously
contained, in, on, or under such Properties, including, without
limitation, the soil and groundwater thereunder, any Hazardous Materials
in concentrations which violate Environmental Laws.
(ii) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is
no Hazardous Materials contamination or violation of any Environmental
Law which could interfere with the continued operation of any of the
Properties or impair the fair saleable value of any thereof.
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<PAGE> 36
(iii) Neither the Borrower nor any of its Subsidiaries has
received any complaint, notice of violation, alleged violation,
investigation or advisory action or of potential liability or of
potential responsibility regarding environmental protection matters or
permit compliance with regard to the Properties, nor is the Borrower
aware that any Governmental Authority is contemplating delivery to the
Borrower or any of its Subsidiaries of any such notice.
(iv) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties, nor have any
Hazardous Materials been transferred from the Properties to any other
location.
(v) There are no governmental, administrative actions or judicial
proceedings pending or contemplated under any Environmental Laws to
which the Borrower or any of its Subsidiaries is or will be named as a
party with respect to the Properties, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements, outstanding under any
Environmental Law with respect to any of the Properties.
(j) The aggregate principal amount of Loans outstanding to the Lenders
under the Commitments (including all Competitive Bid Loans and Negotiated Bid
Loans outstanding thereunder) does not exceed the aggregate amount of the
Commitments.
ARTICLE 5
COVENANTS OF THE BORROWER
-------------------------
SECTION 5.1 AFFIRMATIVE COVENANTS. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Required Lenders shall otherwise consent in writing:
(a) TANGIBLE NET WORTH. Maintain at all times a Tangible Net Worth of
not less than $900,000,000.
(b) TOTAL DEBT TO TOTAL CAPITALIZATION. Maintain at all times a ratio,
expressed as a percentage, of Total Debt to Total Capitalization of not greater
than 50%, calculated on a consolidated basis.
(c) CORPORATE EXISTENCE. Maintain its corporate existence and good
standing in its jurisdiction of incorporation and its qualification and good
standing in all jurisdictions where failure to so qualify would have a Material
Adverse Effect.
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<PAGE> 37
(d) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and orders
where the failure to so comply would have a Material Adverse Effect, such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent otherwise permitted by Section 5.1(j).
(e) REPORTING REQUIREMENTS. Furnish to the Administrative Agent (with
sufficient copies for distribution to each Lender): (i) as soon as available and
in any event within sixty (60) days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter
and related statements of income, cash flows and retained earnings of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified by an
authorized financial officer of the Borrower; (ii) as soon as available and in
any event within one hundred twenty (120) days after the end of each fiscal year
of the Borrower, a copy of the annual report for such year for the Borrower and
its Subsidiaries, containing financial statements for such year certified in a
manner acceptable to the Managing Agents by Ernst & Young, LLP, or other
independent public accountants acceptable to the Managing Agents; (iii) promptly
after sending or filing thereof, copies of all reports which the Borrower sends
to any of its security holders, and copies of all reports and registration
statements which the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange; PROVIDED, that the
Borrower shall not be required to furnish copies of registration statements
filed on Form S-8, or exhibits to the reports and registration statements
referred to in this clause (iii); (iv) promptly after the filing or receiving
thereof, copies of all reports and notices which the Borrower or any Subsidiary
files under ERISA with the PBGC or the United States Department of Labor or
which the Borrower or any Subsidiary receives from the PBGC; PROVIDED, that the
Borrower shall not be required to furnish copies of the reports and notices
referred to in this clause (iv) until such time as the aggregate unfunded vested
liabilities under all plans maintained for employees of the Borrower and its
Subsidiaries and covered by Title IV of ERISA exceed four percent (4%) of the
Borrower's total shareholders' equity as reflected in the financial statements
most recently furnished by the Borrower to the Lenders pursuant to this Section
4.1(e); (v) promptly subsequent to the rendering thereof, notice of the
rendering against the Borrower or any of its Subsidiaries of any final judgment
or order for the payment of money in excess of Twenty-Five Million Dollars
($25,000,000) (or its equivalent in another currency), together with a
description in reasonable detail of the relevant circumstances and the action
which the Borrower proposes to take in response thereto; (vi) promptly, notice
of any Event of Default or any Default hereunder, together with a description in
reasonable detail of the relevant circumstances and the action which the
Borrower proposes to take in response thereto; and (vii) such other information
respecting the conditions or operations, financial or otherwise, of the Borrower
or any of its Subsidiaries as any Lender, through the Administrative Agent, may
from time to time reasonably request.
(f) CERTIFICATES. Furnish to the Administrative Agent (in sufficient
copies for distribution to each Lender), concurrently with the delivery of the
financial statements referred to in Subsection 5.1(e)(ii), a certificate of a
Responsible Officer (i) stating that, to the officer's knowledge, the
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Borrower during such period has in all material respects observed or performed
all of its covenants and other agreements and satisfied every condition,
contained in this Agreement and in the Notes to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any Event of
Default except as specified in such certificate, and (ii) showing in reasonable
detail the calculation supporting such statement in respect of subsections
5.1(a) and (b) and subsections 5.2(b)(xiii) and (c).
(g) COVENANT TO SECURE NOTES EQUALLY. Without affecting the obligations
of the Borrower under Section 5.2(b), if the Borrower shall create, assume,
incur or suffer to exist any Lien upon any of its property or assets, whether
now owned or hereafter acquired, other than Permitted Liens (unless prior
written consent to the creation or assumption thereof shall have been obtained
from the Required Lenders pursuant to Section 8.1), it shall make or cause to be
made effective provisions whereby the Obligations shall be secured by such Lien
equally and ratably with any and all other Debt or other obligations thereby
secured, and such security shall be created and conveyed by documentation
satisfactory in scope, form and substance to the Managing Agents and shall
continue in full force and effect until the same is released by the Lenders, for
as long as the Debt or other obligations are secured thereby and in any case the
Obligations shall have the benefit, to the full extent that the holders may be
entitled thereto under applicable law, of an equitable lien on such property or
assets equally and ratably securing the Obligations.
(h) PROPERTY. Maintain all of its property in good repair, working order
and condition, reasonable wear and tear excepted, and from time to time to make
all proper repairs, renewals or replacements, betterments and improvements
thereto so that the business carried on in connection therewith may be properly
conducted at all times, and cause its Subsidiaries to do so, except where the
failure to make such repairs, renewals, replacements, betterments or
improvements would not, in the aggregate, have a Material Adverse Effect.
(i) INSURANCE. Keep, and cause each of its Subsidiaries to keep, all of
its insurable properties insured against loss or damage by theft, fire, smoke,
sprinklers, riot and explosion, such insurance to be in such form, in such
amount and against such other risks and hazards as are customarily maintained by
other Persons operating similar businesses and having similar properties in the
same general areas in which the Borrower and its Subsidiaries own property.
(j) TAXES. 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 known lawful claims which, if unpaid, might by law become
a Lien upon its property; PROVIDED, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge (x) any such tax, assessment,
charge or claim which is being contested in good faith and by proper proceedings
and for which adequate reserves have been provided in accordance with GAAP or
(y) any such taxes or assessments levied by foreign governments if, in the
opinion of the Board of Directors of the Borrower, payment thereof shall no
longer be advantageous to the Borrower or such Subsidiary in the conduct of its
business and the failure to so pay would not in the aggregate have a Material
Adverse Effect.
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(k) ENVIRONMENTAL LAWS.
(i) Comply with, and ensure compliance by all tenants and
subtenants, if any, with all Environmental Laws and obtain and comply
with and maintain, and ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals, registration
or permits required by Environmental Laws, and cause each of its
Subsidiaries to do so, except to the extent that failure to do so would
not be reasonably expected to have a Material Adverse Effect;
(ii) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities respecting Environmental
Laws, and cause each of its Subsidiaries to do so except to the extent
that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings would not be reasonably
expected to have a Material Adverse Effect; and
(iii) Defend, indemnify and hold harmless the Agents and each
Lender, and their respective employees, agents, officers and directors,
from and against any actual and direct claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever
kind or nature, known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of or noncompliance with any
Environmental Laws applicable to the real property owned or operated by
the Borrower or any of its Subsidiaries, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor;
PROVIDED, that the indemnification provided for by this paragraph shall
survive the repayment of the Notes and the termination of the
Commitments for a period of five (5) years.
(l) Keep, and cause each of its Material Subsidiaries to keep, proper
books of record and account, containing complete and accurate entries of all
their respective financial and business transactions.
SECTION 5.2 NEGATIVE COVENANTS. So long as any Note shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower shall not,
without the written consent of the Required Lenders:
(a) MERGER, CONSOLIDATION AND SALE OF ASSETS. Merge or consolidate with
or sell, assign, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or permit any of its Material
Subsidiaries (or any group of its Subsidiaries which taken as a whole would
constitute
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a Material Subsidiary) to do so, except that any such Subsidiary may merge into
or consolidate with or transfer assets to the Borrower or any other such
Subsidiary and the Borrower may merge with any other Person provided in each
case that, immediately thereafter and giving effect thereto, no event shall have
occurred and be continuing which constitutes a Default or an Event of Default
and, in the case of any such merger or consolidation to which the Borrower is a
party, the Borrower is the surviving corporation.
(b) LIENS. Create, assume, incur or suffer to exist, or allow any
Material Subsidiary to create, assume, incur or suffer to exist, any Lien on any
of its property or assets or any shares of capital stock or indebtedness of any
Material Subsidiary, whether nor owned or hereafter acquired, or assigned,
except:
(i) Liens for taxes not yet due, or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP;
(ii) Liens in respect of property or assets of the Borrower or
any Material Subsidiary imposed by law, which were incurred in the
ordinary course of business, such as carriers', warehousemen's and
mechanics' liens and other similar Liens arising in the ordinary course
of business and (x) which do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operations of the business of the Borrower or any
Material Subsidiary or (y) which are being contested in good faith by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP and which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Closing Date and disclosed on
SCHEDULE 5.2 hereto;
(iv) any Lien existing prior to the time of acquisition (other
than Liens created, assumed or incurred in anticipation of acquisition)
upon any property acquired by the Borrower or any Material Subsidiary
through purchase, merger or consolidation or otherwise, if the payment
of the indebtedness secured thereby or interest thereon will not become,
by assumption or otherwise, a personal obligation of the Borrower or a
Material Subsidiary;
(v) any Lien placed upon property hereafter acquired by the
Borrower or any Material Subsidiary or placed upon any equipment, land,
buildings, or other properties purchased or constructed which secures
Debt incurred for its purchase or construction; PROVIDED, that (a) such
Lien shall cover only hereafter acquired property or property on which
construction occurs, and (b) any such Lien shall be created within six
months of the acquisition of such property; and PROVIDED, FURTHER, that
the amount of Debt secured by any such Lien shall not exceed 100% of the
lesser of the fair market value or the cost of the encumbered property,
equipment, land or building, or construction costs, as the case may be;
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<PAGE> 41
(vi) any Lien arising by reason of deposits with, or the giving
of any form of security to, any governmental agency or any body created
or approved by law or governmental regulation, which is required by law
or governmental regulation as a condition to the transaction of any
business, or the exercise of any privilege or license, or to enable the
Borrower or a Material Subsidiary to maintain self-insurance or to
participate in any arrangements established by law to cover any
insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters;
(vii) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed and
adequate reserves have been established in accordance with GAAP;
(viii) easements or similar encumbrances, the existence of which
does not impair the use or value of the property subject thereto for the
purposes for which it is held or was acquired;
(ix) leases and landlords' Liens on fixtures and movable property
(other than computer equipment) located on premises leased in the
ordinary course of business, so long as the rent secured by said
fixtures and movable property is not in default;
(x) Liens consisting of leases (whether "true" leases or
capitalized leases) of computer equipment entered into in the ordinary
course of business after the date hereof;
(xi) Liens, pledges or deposits made in connection with
Governmental Contracts insofar as such Liens, pledges or deposits relate
to property manufactured, installed, constructed, acquired or to be
supplied by, or property furnished to, the Borrower or a Material
Subsidiary pursuant to, or to enable the performance of, such Government
Contracts, or property the manufacture, installation, construction or
acquisition of which any government or any department or agency thereof
finances or guarantees the financing of, pursuant to, or to enable the
performance of, such Government Contracts; or deposits or Liens, made
pursuant to such Government Contracts, of or upon moneys advanced or
paid pursuant to, or in accordance with the provisions of, such
Government Contracts, or of or upon any materials or supplies acquired
for the purposes of the performance of such Government Contracts; or the
assignment or pledge to any Person, to the extent permitted by law, of
the right, title and interest of the Borrower or a Material Subsidiary
in and to any Government Contract, or in and to any payments due or to
become due thereunder, to secure indebtedness incurred and owing to such
Person for funds or other property supplied, constructed or installed
for or in connection with the performance by the Borrower or such
Subsidiary of its obligations under such Government Contract;
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<PAGE> 42
(xii) any mortgage or other Lien in favor of the United States of
America or any State thereof, or political subdivision of the United
States of America or any State thereof, or any department, agency or
instrumentality of the United States of America or any State thereof, or
any such political subdivision, to secure Debt incurred for the purpose
of financing the acquisition, construction or improvement of all or any
part of the property subject to such mortgage or other Lien; PROVIDED,
that (a) such Lien shall cover only such acquired property or property
on which construction of improvements occurs, and (b) any such Lien
shall be created within six months of the acquisition of or construction
or improvement on such property; and PROVIDED, FURTHER, that the amount
of Debt secured by any such Lien shall not exceed 100% of the lesser of
the fair market value or the cost of the encumbered property, equipment,
land or building, as the case may be; and
(xiii) any Lien other than Permitted Liens, PROVIDED that the sum
of (x) the aggregate amount of Debt secured by all such Liens permitted
under this clause (xiii), (y) the aggregate monetary obligations in
respect of transactions permitted pursuant to the proviso of Section
5.2(c) and (z) the aggregate face amount of all receivables of the
Borrower and its Subsidiaries at any time sold (whether or not accounted
for as a sale or as a financing under GAAP) and currently outstanding,
shall not at any time exceed twenty-five percent (25%) of Total
Capitalization.
(c) SALE AND LEASEBACK. Enter into any arrangement for a term exceeding
three (3) years with any investor or to which such investor is a party providing
for the leasing by the Borrower or any Material Subsidiary of real or personal
property which has been or is to be sold or transferred by the Borrower or any
Material Subsidiary of the Borrower to such investor or to any Person to whom
funds have been or are to be advanced by such investor on the security of such
property or rental obligations of the Borrower or any Material Subsidiary;
PROVIDED, that the Borrower or any Material Subsidiary may enter into any such
arrangement if the sum of (i) the aggregate monetary obligations in respect of
all such transactions, including, without limitation, the proposed
sale-leaseback transaction, (ii) the aggregate amount of Debt secured by any
Liens permitted by Section 5.2(b)(xiii), and (iii) the aggregate face amount of
all receivables of the Borrower or any of its Subsidiaries at any time sold
(whether or not accounted for as a sale or as a financing under GAAP) and
currently outstanding, shall not exceed twenty-five percent (25%) of Total
Capitalization.
ARTICLE 6
EVENTS OF DEFAULT
-----------------
SECTION 6.1 EVENTS OF DEFAULT. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any amount of principal of any Loan
when due; or
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<PAGE> 43
(b) The Borrower shall fail to pay any interest on any Loan when due and
such failure shall remain unremedied for five (5) days; or
(c) Any representation or warranty made or deemed made by the Borrower
herein or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when made
or deemed made; or
(d) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be performed or
observed and any such failure shall remain unremedied for thirty (30) days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(e) The Borrower or any of its Subsidiaries shall (i) fail to make any
payment on account of any Debt (excluding Debt evidenced by the Notes) or
Hedging Arrangement having an outstanding principal amount (or notional amount
in the case of a Hedging Arrangement) of $25,000,000 or more of the Borrower or
such Subsidiary (as the case may be), or any interest or premium thereon, when
due (whether at scheduled maturity, upon 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 Debt
or Hedging Arrangement, or (ii) fail to perform or observe any term, covenant,
condition on its part to be performed or observed under any agreement or
instrument relating to any such Debt (but not including Hedging Arrangements)
when required to be performed or observed, and such failure shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such failure to perform or observe is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment and other than as a consequence of the
sale, pledge or other disposition by the Borrower of Margin Stock), prior to the
stated maturity thereof; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period in
excess of sixty (60) days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any of its
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<PAGE> 44
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(g) A final judgment or order known to the Borrower for the payment of
money in excess of $25,000,000 (or its equivalent in another currency) shall be
rendered against the Borrower or any of its Subsidiaries and not paid and either
(i) enforcement proceedings shall have been commenced upon such judgment or
order and such proceedings are not being contested in good faith or (ii) a stay
of enforcement of such judgment or order or similar relief, by reason of a
pending appeal or otherwise, shall not be in effect with respect to such
judgment or order for any period of ten (10) consecutive days; PROVIDED, that
the circumstances described in clause (i) or (ii), above, as to such a judgment
or order which is rendered by any foreign Governmental Authority and which has
not been confirmed in any way by any United States Governmental Authority shall
not give rise to any Event of Default under this subsection (g) if the Lenders
shall have been furnished (promptly after the Borrower shall have knowledge of
the commencement of any such proceedings or any such ten (10) day period and
promptly upon obtaining knowledge of any material change in such circumstances)
with a copy (certified by the Secretary or an Assistant Secretary of the
Borrower) of a resolution adopted by the Board of Directors or the Executive
Committee of the Board of Directors of the Borrower to the effect that, having
considered the advice of counsel, it has been determined to be in the best
interests of the Borrower to permit such circumstances to exist and directing
the appropriate officers of the Borrower to notify the Lenders of all material
developments relating to such judgment or order (including any significant
modification of such determination); or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Single Employer Plan,
(iii) a Reportable Event shall occur with respect to any Single Employer Plan,
or proceedings shall commence to have any Single Employer Plan terminated or to
have a trustee appointed, or a trustee shall be appointed, to administer any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Managing Agents,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Managing Agents is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist,
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could subject the Borrower or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the business,
operations, property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole;
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<PAGE> 45
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (f) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued fees and all other Obligations of the Borrower accrued under this
Agreement, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein to the contrary
notwithstanding; and with respect to any event with respect to the Borrower
described in paragraph (f) above, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued fees and all other Obligations of the Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding. Except as expressly provided above in this section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
ARTICLE 7
ADMINISTRATIVE AGENT
--------------------
Each of the Lenders, the Documentation Agent, the Managing Agents and
the Co-Agents hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or Affiliate thereof
as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default or an Event of Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise by the Required Lenders in writing,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating
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<PAGE> 46
to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as Administrative Agent or any of its affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or,
when expressly required hereby, all of the Lenders) or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default or an Event of Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article 3 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in good faith in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective affiliates. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the affiliates of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Managing Agents and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Managing Agents, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an affiliate of any
such bank, having a combined capital and surplus of at least $500,000,000 or an
affiliate of any such bank.
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<PAGE> 47
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 8.4 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
No additional managing agents or co-agents shall be appointed without the prior
approval of the Managing Agents.
Each Lender agrees (i) to reimburse the Administrative Agent and the
Documentation Agent, on demand, in the amount of its pro rata share (determined
based on the relative percentage of each Lender's Commitment to the total
Commitments last in effect hereunder prior to the incurrence of such expense) of
any reasonable expenses incurred for the benefit of the Lenders by the
Administrative Agent and the Documentation Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, which shall not have been reimbursed by the Borrower and (ii) to
indemnify and hold harmless the Administrative Agent, the Documentation Agent
and each Managing Agent and any of their respective directors, officers,
employees or agents, on demand, in the amount of such pro rata shares, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against any
of them in their capacity as the Administrative Agent, the Documentation Agent
or a Managing Agent, as applicable, or any of them in any way relating to or
arising out of this Agreement or any action taken or omitted by it or any of
them under this Agreement, to the extent the same shall not have been reimbursed
by the Borrower; provided that no Lender shall be liable to the Administrative
Agent, the Documentation Agent or any Managing Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent, such Managing Agent or any of their
directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Documentation Agent, the Managing Agents, the
Co-Agents, the Syndication Agent or any other Lender and based on such 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 Managing Agents, the Co-Agents, the Syndication Agent
or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related agreement or
any document furnished hereunder or thereunder.
Each of the Lenders hereby designates the Documentation Agent and the
Managing Agents as their agents and acknowledges that each shall have no duties
under this Agreement whatsoever
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<PAGE> 48
except as explicitly set forth herein and that each shall be entitled to all
protections afforded the Administrative Agent under this Article 7.
None of the Lenders identified herein as a "Co-Agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. The Syndication Agent shall
have no right, power, obligation, liability, responsibility or duty under the
Agreement whatsoever and shall not be deemed to be a "Lender" hereunder.
ARTICLE 8
MISCELLANEOUS
-------------
SECTION 8.1 WAIVERS AND AMENDMENTS. (a) No failure or delay of the
Administrative Agent, any other Agent or any Lender in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the other Agents and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) increase or extend the Commitment
or decrease the Facility Fees of any Lender without the prior written consent of
such Lender or (iii) amend or modify the provisions of Section 8.4, Section 8.7,
the provisions of this Section or the definition of "Required Lenders" or
Article 3 without the prior written consent of each Lender; PROVIDED FURTHER
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Documentation Agent or the Managing
Agents hereunder without the prior written consent of the Managing Agents, the
Documentation Agent or the Administrative Agent, as applicable. Each Lender
shall be bound by any waiver, amendment or modification authorized by this
Section.
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<PAGE> 49
SECTION 8.2 NOTICES. Except as expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or when deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows (or to such other address
as may be hereafter notified by the respective parties hereto and any future
holder of any Note):
(a) if to the Borrower, to it at 1025 W. NASA Boulevard, Melbourne,
Florida 32919, Attention: Treasurer (Telecopy No.: (407) 727-9284);
(b) if to the Administrative Agent or to Chase as Managing Agent, to it
at Grand Central Tower, 140 East 45th Street, New York, New York 10017,
Attention of Archie Rigopoulis (Telecopy No. (212) 622-0002), with a copy to The
Chase Manhattan Bank; 1 Chase Manhattan Plaza, New York, New York 10081,
Attention: John Huber (Telecopy No. (212) 552-4266).
(c) if to the Documentation Agent or to SunTrust as Managing Agent, to
it at P.O. Box 4418, Center No. 126, Atlanta, Georgia 30302, Attention: David W.
Penter (Telecopy No.: (404) 588-8833);
(d) if to Bank of America as Managing Agent, to it at 1230 Peachtree
Street, 38th Floor, Atlanta, Georgia 30309, Attention: Laurens Schaad (Telecopy
No. (404) 249-6938); and
(e) if to a Lender, to it at its address (or telecopy number) set forth
on SCHEDULE 1.1 or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto;
PROVIDED THAT any notice, request or demand to or upon the Administrative Agent
pursuant to Article 2 shall not be effective until received.
SECTION 8.3 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigations made by the Lenders or on their behalf, and shall continue in
full force and effect as long as any Obligation is outstanding and unpaid and so
long as the Commitments have not been terminated.
SECTION 8.4 PAYMENT OF EXPENSES AND TAXES; INDEMNITY. (a) The Borrower
agrees (i) to pay or reimburse each of the Administrative Agent, the
Documentation Agent and the Lenders for all its reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the Notes, and any other documents prepared in connection
herewith or therewith, including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent, the Documentation Agent
and the Lenders or the costs of services allocated to in-house counsel to the
Administrative Agent, the Documentation Agent and the
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<PAGE> 50
Lenders, and (ii) to pay, indemnify, and hold each of the Administrative Agent,
the Documentation Agent and the Lenders harmless from any and all recording and
filing fees and any and all actual and direct liabilities with respect to, or
resulting from any delay in paying stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes, and any such other
documents.
(b) The Borrower agrees to indemnify each Managing Agent, the
Administrative Agent, the Documentation Agent, the Syndication Agent, each
Lender and each of their respective directors, officers, employees and agents
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of or in connection
with (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, (ii) the performance by the parties hereto of
their respective obligations hereunder or the consummation of the transactions
contemplated hereby, (iii) the use of the proceeds of the Loans or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, and including any legal action
by the Borrower against an Indemnitee (unless the Borrower prevails); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct, breach
of this Agreement or violation of applicable law of such Indemnitee or (y) are
the result of claims of Lenders against other Lenders not attributable to the
Borrower's actions and for which the Borrower otherwise has no liability.
(c) The provisions of this Section 8.4 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Managing Agents, the Administrative Agent, the Documentation Agent, the
Syndication Agent or any Lender. All amounts due under this Section 8.4 shall be
payable on written demand therefor.
SECTION 8.5 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
affiliate of a Lender, the Borrower and the Administrative Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed; provided that no consent of the Borrower shall
be required if an Event of Default has occurred and is continuing), (ii) each
such assignment shall be of a constant percentage of all the assigning Lender's
rights and obligations under the Commitments and Loans, (iii) the amount of the
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<PAGE> 51
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 and the
amount of the Commitment of such Lender remaining after such assignment shall
not be less than $5,000,000 or shall be zero, and (iv) parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance and a processing and recordation fee of $3,000. Upon acceptance
and recording pursuant to paragraph (c) of this Section 8.5, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto (but shall continue to be entitled to the benefits of Sections
2.17, 2.18, 2.19, 2.23 and 8.4, as well as to any Facility Fees accrued for its
account hereunder and not yet paid)). Notwithstanding the foregoing, any Lender
assigning its rights and obligations under this Agreement may retain any
Competitive Bid Loans or Negotiated Bid Loans made by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any Loans
so retained until such Loans have been repaid in full in accordance with this
Agreement. In connection with any assignment pursuant hereto, the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements to deliver new Notes from the Borrower to the transferor Lender and
the transferee to evidence their relative Commitments.
(b) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Loans thereunder, in each
case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning 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 other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant hereto and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Documentation Agent, the Managing Agents, such assigning Lender
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<PAGE> 52
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; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (a) above and, if required, the written consent of
the Borrower and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders and the Borrower.
(e) Each Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loans
owing to such Lender, any Note held by such Lender, the Commitment of such
Lender or any other interest of such Lender hereunder. In the event of any such
sale by any Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the Borrower shall remain unchanged, the
Lender shall remain solely responsible for the performance thereof, the Lender
shall remain the holder of any such Note for all purposes under this Agreement,
and the Borrower shall continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations under this Agreement. The
Borrower agrees that if amounts outstanding under this Agreement or any Note are
due or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement or any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.17, 2.18, 2.19, 2.23 and 8.4 with respect
to its participation in the Commitment or Commitments and the Loans outstanding
from time to time; PROVIDED, that no Participant shall be entitled to receive
any greater amount pursuant to such sections than the Lender which sold it the
participation would have
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<PAGE> 53
been entitled to receive in respect of the amount of the participation
transferred by such Lender to such participant had no such transfer occurred.
(f) The Borrower authorizes each Lender to disclose to any Participant
or prospective Participant or assignee or prospective assignee any and all
financial and other information in such Lender's possession concerning the
Borrower, its Subsidiaries and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower, its Subsidiaries and its
Affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this section, any interest in this Agreement or a
Note is transferred to any assignee or Participant which is organized under the
laws of any jurisdiction other than the United States or any state thereof, the
Lender making such assignment or selling such participation shall cause such
assignee or Participant, as the case may be, concurrently with the effectiveness
of such transfer, (i) to represent to such Lender (for the benefit of such
Lender and the Borrower) that under applicable law and treaties no taxes will be
required to be withheld by the Borrower (or such Lender in the case of a
Participant) with respect to any payments to be made to such assignee
Participant in respect of the Loans, (ii) to furnish to such Lender either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such assignee or Participant claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and (iii)
to agree (for the benefit of such Lender and the Borrower) to provide such
Lender (in the case of a Participant) or the Borrower (in the case of an
assignee) a new Form 4224 or Form 1001 upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments, duly executed and completed
by such Participant or assignee, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption (with the express understanding that an assigning Lender shall have no
responsibility for the compliance of the assignee with any such agreement
following the effective date of the assignment).
(h) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
SECTION 8.6 RIGHT OF SET-OFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the declaration of any Loan to be
due and payable pursuant to the provisions of Section 6.1, each Lender is hereby
authorized at any time and from time to time, without notice to the Borrower
(any such notice being expressly waived by the Borrower) and to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final but not including custodial or
fiduciary deposits) at any time held and other indebtedness at any time owing by
any Lender or any affiliate of any Lender to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Notes held by such Lender,
irrespective of whether or not the Administrative Agent or any Lender shall have
made any demand under this Agreement or such
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<PAGE> 54
Notes and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Lenders under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Lenders or the Administrative Agent may have.
SECTION 8.7 BINDING EFFECT. This Agreement shall become effective as of
the date first above written and when the conditions set forth in Section 3.1
shall have been satisfied, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Lenders and their respective successors and
assigns, except that the Borrower shall not have the right to assign or transfer
any of its rights or obligations hereunder or any interest herein without the
prior written consent of each of the Lenders.
SECTION 8.8 APPLICABLE LAW. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 8.9 INTEREST LIMITATION. Notwithstanding anything herein to the
contrary, if at any time the applicable interest rate, together with all fees
and charges which are treated as interest under applicable law (collectively the
"Charges"), as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged, received, taken or
reserved by any Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable on the
Loans held by such Lender, together with all Charges payable to such Lender,
shall be limited to the Maximum Rate.
SECTION 8.10 HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
SECTION 8.11 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.
SECTION 8.12 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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<PAGE> 55
SECTION 8.13 INTEGRATION. This Agreement represents the entire agreement
of the Borrower, the Administrative Agent, the Documentation Agent, the Managing
Agents, the Co-Agents and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Borrower, the Administrative Agent, the Documentation Agent, the Managing
Agents, the Co-Agents or the Lenders relative to the subject matter hereof not
expressly set forth or referred to herein or in the Notes.
SECTION 8.14 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 8.2 or at such other address of which the
Administrative Agent and the Lenders shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this section any special, exemplary, punitive or consequential damages.
SECTION 8.15 WAIVER OF JURY TRIAL. Each of the Borrower, the
Administrative Agent, the Managing Agents and the Lenders hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation (whether sounding in tort, contract or
otherwise) directly or indirectly arising out of, under or in connection with
this Agreement. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement, as applicable, by, among other things, the
mutual waivers and certifications in this Section 8.15.
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<PAGE> 56
SECTION 8.16 TELEPHONE NOTICE. To the extent that telephonic notice is
provided for herein, the Administrative Agent and each Lender are authorized to
rely on instructions received by telephone from persons that the Administrative
Agent and such Lender believes in good faith to be authorized to give such
instructions hereunder. Neither the Administrative Agent nor any Lender shall
incur any liability to the Borrower or any other Person as a result of any act
or omission by the Administrative Agent or any Lender in accordance with such
instructions; provided, that the foregoing shall not apply in the event of the
Administrative Agent's or such Lender's gross negligence or wilful misconduct.
[SIGNATURES SET FORTH ON NEXT PAGE]
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<PAGE> 57
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.
BORROWER:
HARRIS CORPORATION
By: /s/ D. S. Wasserman
--------------------------------------
David S. Wasserman
Vice President - Treasurer
AGENTS:
THE CHASE MANHATTAN BANK, as
Administrative Agent and Managing Agent
By: /s/ John J. Huber
--------------------------------------
John J. Huber III
Managing Director
SUNTRUST BANK, ATLANTA, as Documentation
Agent and Managing Agent
By: /s/ David W. Penter
--------------------------------------
David W. Penter
Group Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Managing
Agent
By: /s/ Laurens F. Schaad, Jr.
--------------------------------------
Laurens F. Schaad, Jr.
Vice President
B.A. SECURITIES, INC., as Syndication Agent
By: /s/ Robert Karen
--------------------------------------
Robert Karen
Vice President
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<PAGE> 58
CO-AGENTS:
ABN AMRO BANK N.V., ATLANTA AGENCY
as Co-Agent
By: /s/ Steven J. HIPSMAN
--------------------------------------
Steven Hipsman
Vice President
By: /s/ Larry K. Kelley
--------------------------------------
Larry Kelley
Group Vice President
WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION, as Co-Agent
By: /s/ Tammy Hughes
---------------------------------------
Tammy Hughes
Title:
COMMITMENT: LENDERS:
$18,750,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Laurens F. Schaad, Jr.
--------------------------------------
Laurens F. Schaad, Jr.
Vice President
$18,750,000 THE CHASE MANHATTAN BANK
By: /s/ John J. Huber
---------------------------------------
John J. Huber III
Managing Director
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<PAGE> 59
COMMITMENT: LENDERS:
$18,750,000 SUNTRUST BANK, ATLANTA
By: /s/ David W. Penter
---------------------------------------
David W. Penter
Group Vice President
By: /s/ Thomas R. Banks
---------------------------------------
Thomas R. Banks
Banking Officer
$18,750,000 ABN AMRO BANK N.V., ATLANTA
AGENCY
By: /s/ Steven J. Hipsman
---------------------------------------
Steven Hipsman
Vice President
By: /s/ Larry K. Kelley
---------------------------------------
Larry Kelley
Group Vice President
$18,750,000 WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By: /s/ Tammy Hughes
--------------------------------------
Tammy Hughes
Title:
$11,250,000 MELLON BANK, N.A.
By: /s/ Clifford A. Mull
--------------------------------------
Clifford A. Mull
Assistant Vice President
- 55 -
<PAGE> 60
COMMITMENT: LENDERS:
$11,250,000 NATIONAL CITY BANK
By: /s/ Diego Tobon
-------------------------------------
Diego Tobon
Vice President
$11,250,000 ROYAL BANK OF CANADA
By: /s/ Michael Korine
-------------------------------------
Michael Korine
Senior Manager
$7,500,000 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By: /s/ Kyle Loughlin
-------------------------------------
Kyle Loughlin
Vice President
$7,500,000 BANCA COMMERCIALE ITALIANA -
NEW YORK BRANCH
By: /s/ Charles Dougherty
-------------------------------------
C. Dougherty
Vice President
By: /s/ B. Carlson
-------------------------------------
B. Carlson
Assistant Vice President
$7,500,000 BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH
By: /s/ Giulio Giovine/Giuliano Violetta
------------------------------------
Giulio Giovine/Giuliano Violetta
Vice President/First Vice President
- 56 -
<PAGE> 61
COMMITMENT: LENDERS:
$7,500,000 BANK OF MONTREAL
By: /s/ Kanu Modi
-------------------------------------
Kanu Modi
Director
$7,500,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ J. Bruce Meredith
-------------------------------------
J. Bruce Meredith
Senior Vice President & Manager
$7,500,000 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ John L. Stacy
-------------------------------------
John L. Stacy
Vice President
$7,500,000 CIBC INC.
By: /s/ Roger Colden
-------------------------------------
Roger Colden
Director
$7,500,000 CITIBANK, N.A.
By: /s/ David L. Harris
-------------------------------------
David L. Harris
Vice President
- 57 -
<PAGE> 62
COMMITMENT: LENDERS:
$7,500,000 COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By: /s/ Andreas Bremer
-----------------------------------
Andreas Bremer
Senior Vice President & Manager
By: /s/ Mary Smith
-----------------------------------
Mary Smith
Assistant Vice President
$7,500,000 CORESTATES BANK, N.A.
By: /s/ Laura J. Zavacki
-----------------------------------
Laura J. Zavacki
Commercial Officer
$7,500,000 THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Toshiaki Kurihara
-----------------------------------
Toshiaki Kurihara
Joint General Manager
$7,500,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Brett C. Neubert
-----------------------------------
Brett C. Neubert
Authorized Agent
$7,500,000 FIRST UNION NATIONAL BANK
OF FLORIDA, INC.
By: /s/ Michael J. Carlin
-----------------------------------
Michael J. Carlin
Senior Vice President
- 58 -
<PAGE> 63
COMMITMENT: LENDERS:
$7,500,000 FLEET NATIONAL BANK
By: /s/ Frank Benesh
----------------------------------
Frank Benesh
Vice President
$7,500,000 THE FUJI BANK LIMITED,
NEW YORK BRANCH
By: /s/ Masanobu Kobayashi
----------------------------------
Masanobu Kobayashi
Vice President & Manager
$7,500,000 GULF INTERNATIONAL BANK
B.S.C.
By: /s/ Abdel-Fattah Tahoun
---------------------------------
Abdel-Fattah Tahoun
Senior Vice President
By: /s/ Haytham F. Khalil
---------------------------------
Haytham F. Khalil
Assistant Vice President
$7,500,000 MARINE MIDLAND BANK
By: /s/ William M. Holland
---------------------------------
William M. Holland
Vice President
$7,500,000 THE SAKURA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Hiroyasu Imanishi
---------------------------------
Hiroyasu Imanishi
Vice President & Senior Manager
- 59 -
<PAGE> 64
COMMITMENT: LENDERS:
$7,500,000 ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By: /s/ Robert Wurster/William De Aneglo
---------------------------------------
Robert Wurster/William De Angelo
First Vice President/First Vice
President
$7,500,000 THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ P. J. Pawlak
--------------------------------------
P. J. Pawlak
Vice President & Senior Manager
$7,500,000 THE SUMITOMO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Masayuki Fukushima
---------------------------------------
Masayuki Fukushima
Joint General Manager
$7,500,000 THE TOKAI BANK LIMITED,
ATLANTA AGENCY
By: /s/ Eiichi Fujihira
--------------------------------------
Eiichi Fujihira
General Manager
$7,500,000 THE YASUDA TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By: /s/ Makoto Tagawa
--------------------------------------
Makoto Tagawa
Deputy General Manager
- 60 -
<PAGE> 1
EXHIBIT 10(ii)
CONFORMED COPY
- - -------------------------------------------------------------------------------
$500,000,000
5-YEAR
CREDIT AGREEMENT
DATED AS OF NOVEMBER 6, 1996
AMONG
HARRIS CORPORATION,
AS BORROWER
AND
THE LENDERS NAMED HEREIN,
AS LENDERS
THE CHASE MANHATTAN BANK,
SUNTRUST BANK, ATLANTA
AND
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
AS MANAGING AGENTS
AND
ABN AMRO BANK N.V., ATLANTA AGENCY
AND
WACHOVIA BANK OF GEORGIA, N.A.
AS CO-AGENTS
AND
BA SECURITIES, INC.,
AS SYNDICATION AGENT
AND
SUNTRUST BANK, ATLANTA,
AS DOCUMENTATION AGENT
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1 DEFINITIONS; CONSTRUCTION.......................................................................2
-------------------------
SECTION 1.1 DEFINITIONS. .............................................................2
SECTION 1.2 COMPUTATION OF TIME PERIODS. ............................................10
SECTION 1.3 ACCOUNTING TERMS. .......................................................10
ARTICLE 2 AMOUNTS AND TERMS OF THE COMMITMENTS AND LOANS.................................................11
----------------------------------------------
SECTION 2.1 COMMITMENTS. ............................................................11
SECTION 2.2 LOANS.....................................................................11
SECTION 2.3 COMPETITIVE BID PROCEDURE.................................................13
SECTION 2.4 NEGOTIATED BID LOANS. ...................................................15
SECTION 2.5 SYNDICATED LOANS..........................................................15
SECTION 2.6 VOLUNTARY CONVERSION AND CONTINUATION OF SYNDICATED LOANS. ..............16
SECTION 2.7 FEES. ....................................................................17
SECTION 2.8 REPAYMENT OF LOANS; NOTES.................................................18
SECTION 2.9 INTEREST ON LOANS. ......................................................18
SECTION 2.10 DEFAULT INTEREST. .......................................................19
SECTION 2.11 INTEREST RATE DETERMINATION AND PROTECTION................................19
SECTION 2.12 TERMINATION OR REDUCTION OF THE COMMITMENTS...............................20
SECTION 2.13 EXTENSION OF COMMITMENTS..................................................20
SECTION 2.14 INCREASE OF COMMITMENTS...................................................21
SECTION 2.15 OPTIONAL PREPAYMENTS. ...................................................22
SECTION 2.16 INABILITY TO DETERMINE INTEREST RATE......................................23
SECTION 2.17 INCREASED COSTS...........................................................23
SECTION 2.18 ILLEGALITY................................................................25
SECTION 2.19 INDEMNITY.................................................................25
SECTION 2.20 PRO RATA TREATMENT. .....................................................26
SECTION 2.21 SHARING OF SETOFFS. .....................................................26
SECTION 2.22 PAYMENTS. ...............................................................27
SECTION 2.23 TAXES.....................................................................28
SECTION 2.24 ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES.....................29
ARTICLE 3 CONDITIONS OF LENDING..........................................................................29
---------------------
SECTION 3.1 INITIAL CONDITIONS PRECEDENT..............................................29
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN;
REPRESENTATIONS AND WARRANTIES............................................30
- i -
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.................................................................31
------------------------------
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER............................31
ARTICLE 5 COVENANTS OF THE BORROWER......................................................................33
-------------------------
SECTION 5.1 AFFIRMATIVE COVENANTS.....................................................33
SECTION 5.2 NEGATIVE COVENANTS........................................................37
ARTICLE 6 EVENTS OF DEFAULT..............................................................................40
----------------
SECTION 6.1 EVENTS OF DEFAULT.........................................................40
ARTICLE 7 ADMINISTRATIVE AGENT...........................................................................42
--------------------
ARTICLE 8 MISCELLANEOUS..................................................................................45
-------------
SECTION 8.1 WAIVERS AND AMENDMENTS....................................................45
SECTION 8.2 NOTICES...................................................................46
SECTION 8.3 SURVIVAL OF AGREEMENT.....................................................46
SECTION 8.4 PAYMENT OF EXPENSES AND TAXES; INDEMNITY..................................47
SECTION 8.5 ASSIGNMENTS AND PARTICIPATIONS............................................48
SECTION 8.6 RIGHT OF SET-OFF..........................................................51
SECTION 8.7 BINDING EFFECT............................................................51
SECTION 8.8 APPLICABLE LAW. .........................................................51
SECTION 8.9 INTEREST LIMITATION. ....................................................51
SECTION 8.10 HEADINGS. ...............................................................51
SECTION 8.11 EXECUTION IN COUNTERPARTS.................................................52
SECTION 8.12 SEVERABILITY..............................................................52
SECTION 8.13 INTEGRATION...............................................................52
SECTION 8.14 SUBMISSION TO JURISDICTION; WAIVERS.......................................52
SECTION 8.15 WAIVER OF JURY TRIAL. ...................................................53
SECTION 8.16 TELEPHONE NOTICE..........................................................53
- ii -
</TABLE>
<PAGE> 4
EXHIBITS
Exhibit A --- Form of Syndicated Note
Exhibit B --- Form of Competitive Bid Note
Exhibit C --- Form of Negotiated Bid Note
Exhibit D-1 --- Form of Competitive Bid Request
Exhibit D-2 --- Form of Notice of Competitive Bid Request
Exhibit D-3 --- Form of Competitive Bid Quote
Exhibit D-4 --- Form of Competitive Bid Confirmation
Exhibit E --- Form of Notice of Syndicated Borrowing
Exhibit F-1 --- Form of Opinion of Sullivan & Cromwell
Exhibit F-2 --- Form of Opinion of Corporate Counsel to Borrower
Exhibit G --- Form of Closing Certificate of Borrower
Exhibit H --- Form of Assignment and Acceptance
SCHEDULES
Schedule 1.1 --- Addresses and Lending Offices
of Lenders
Schedule 3.1 --- List of Existing Credit Facilities
Schedule 4.1 --- Litigation
Schedule 5.2 --- Existing Liens
- iii -
<PAGE> 5
5-YEAR
CREDIT AGREEMENT
----------------
THIS 5-YEAR CREDIT AGREEMENT made and entered into as of
November 6, 1996, by and among HARRIS CORPORATION, a Delaware corporation (the
"Borrower"), the banks and lending institutions listed on the signature pages
hereof, any assignees of such banks and lending institutions or any other banks
and lending institutions which become "Lenders" as provided herein (such banks
and lending institutions, and assignees referred to collectively herein as the
"Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), SUNTRUST BANK, ATLANTA, a Georgia banking corporation ("SunTrust"), as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association ("Bank of America"), Chase, SunTrust and Bank of America as
managing agents for the Lenders (in such capacity, each a "Managing Agent" and
collectively, the "Managing Agents"), BA SECURITIES, INC., a New York
corporation, as syndication agent for the Lenders (in such capacity, the
"Syndication Agent"), and ABN AMRO BANK N.V., ATLANTA AGENCY and WACHOVIA BANK
OF GEORGIA, N.A., as co-agents for the Lenders (in such capacity, each a
"Co-Agent" and collectively, the "Co-Agents");
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower has requested the Lenders to extend
credit to the Borrower pursuant to a 5-year revolving credit facility in an
aggregate principal amount at any one time outstanding not to exceed
$500,000,000 or, if the Borrower obtains commitments for increases in the
facilities in accordance with the terms hereof, $600,000,000;
WHEREAS, the Borrower has also requested the Lenders to
provide a procedure whereby the Borrower may invite the Lenders, collectively or
individually, to bid on an uncommitted basis on borrowings by the Borrower to
mature on or prior to the maturity date of the facility;
WHEREAS, the Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders, the Managing
Agents, the Syndication Agent, the Co-Agents, the Documentation Agent and the
Administrative Agent hereby agree as follows:
- 1 -
<PAGE> 6
ARTICLE 1
DEFINITIONS; CONSTRUCTION
-------------------------
SECTION 1.1 DEFINITIONS. In addition to the other terms defined herein,
the following terms used in this Agreement shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"AFFILIATE" means, as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the
Documentation Agent, the Managing Agents, the Syndication Agent and the
Co-Agents.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Loan, Fixed Rate
Loan or Negotiated Bid Loan, and such Lender's Eurodollar Lending Office in the
case of a LIBO Rate Loan.
"APPLICABLE MARGIN" means, for each Interest Period for each LIBO Rate
Syndicated Loan, the rate per annum designated below based on the higher of the
long-term unenhanced senior unsecured debt ratings assigned to the Borrower by
Standard & Poor's and Moody's in effect on the day that is two (2) Business Days
prior to the first day of such Interest Period for such LIBO Rate Syndicated
Loan; provided that in the event one of such ratings is lower than BBB- or Baa3,
the Applicable Margin shall be .400%:
Applicable
Rating Margin
------ ------
Lower than BBB- or Baa3 0.400%
BBB- or Baa3 0.250%
BBB or Baa2 0.225%
BBB+ or Baa1 0.210%
A- or A3 0.175%
A or A2 0.155%
Higher than A or A2 0.135%
- 2 -
<PAGE> 7
If Standard & Poor's or Moody's shall significantly change its rating
system prior to the date all LIBO Rate Syndicated Loans have been repaid and the
Commitments terminated, the Borrower and the Lenders shall negotiate in good
faith to amend this definition to reflect such changed rating system and pending
such amendment the last Applicable Margin otherwise calculable and in effect
prior to such change shall apply.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
agreement substantially in the form of EXHIBIT H, entered into by a Lender and
an assignee, to the extent required, approved by the Borrower and the Managing
Agents, and delivered to the Administrative Agent pursuant to Section 8.5.
"AUGMENTING LENDER" has the meaning specified in Section 2.14(b).
"BASE RATE" means the higher of (i) the rate of interest most recently
announced by the Administrative Agent as its reference, base or prime lending
rate, as the case may be, for Dollar loans in the United States and (ii) the
Federal Funds Rate (as in effect from time to time) plus one-half of one percent
(1/2%) per annum.
"BASE RATE LOAN" means a Type of Syndicated Loan which bears interest
at a rate determined by reference to the Base Rate in accordance with the
provisions of Article 2.
"BORROWING" means a group of Loans of a single Type made by the Lenders
participating therein on a single date and, with respect to LIBO Rate Loans and
Fixed Rate Loans, as to which a single Interest Period is in effect.
"BORROWING DATE" means any Business Day specified by the Borrower as a
date on which the Borrower requests the Lenders to make Loans hereunder.
"BUSINESS DAY" means a day of the year on which commercial banks are
not required or authorized to close for business in New York City and, if the
applicable Business Day relates to any LIBO Rate Loans, on which dealings are
carried on in the London interbank market.
"CLOSING DATE" means November 6, 1996.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means, with respect to any Lender, the amount set opposite
its name on the signature pages hereto, or if such Lender has entered into any
Assignment and Acceptance or is an Augmenting Lender, the amount set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.5(c), as such Commitment may be extended pursuant to Section 2.13,
reduced pursuant to Section 2.12 or Section 8.5(a) or increased pursuant to
Section 2.14 or Section 8.5(a).
- 3 -
<PAGE> 8
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is a part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"COMPETITIVE BID BORROWING" means a Borrowing comprised of Competitive
Bid Loans.
"COMPETITIVE BID LOAN" means a Loan from a Lender to the Borrower
outstanding pursuant to this Agreement and advanced pursuant to the bidding
procedure set forth in Section 2.3 (which Loan may exceed the individual
Commitment of such Lender). Each Competitive Bid Loan shall be either a LIBO
Rate Competitive Bid Loan or a Fixed Rate Loan.
"COMPETITIVE BID LOAN CONFIRMATION" means a Competitive Bid Loan
confirmation, substantially in the form of EXHIBIT D-4, to be delivered by the
Borrower to the Administrative Agent in accordance with Section 2.3(c).
"COMPETITIVE BID NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of EXHIBIT B hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
Competitive Bid Loans made by such Lender.
"COMPETITIVE BID QUOTE" means a bid quote, substantially in the form of
EXHIBIT D-3, to be delivered by a Lender to the Administrative Agent in response
to a Competitive Bid Request by the Borrower in accordance with Section 2.3(c).
"COMPETITIVE BID RATE" means, as to any Competitive Bid Quote made by a
Lender pursuant to Section 2.3, (i) in the case of a LIBO Rate Competitive Bid
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid Quote.
"COMPETITIVE BID REQUEST" means a Competitive Bid Loan request,
substantially in the form of EXHIBIT D-1, to be delivered by the Borrower to the
Administrative Agent in accordance with Section 2.3(b).
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
Syndicated Loans of one Type to another Type pursuant to Section 2.6.
"DEBT" means, as to any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property or
services in respect of which such Person is liable, contingently or otherwise,
as obligor, guarantor or otherwise, or in respect of which such Person otherwise
assures a creditor against loss, (other than current liabilities incurred in the
ordinary course of business and payable in accordance with customary practices)
or which is evidenced by a note, bond, debenture or similar instrument and (b)
all obligations of such Person under any lease of
- 4 -
<PAGE> 9
property, real or personal, the obligations of the lessee in respect of which
are required in accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLAR EQUIVALENT" has the meaning specified in Section 2.22(f).
"DOLLARS" or "$" mean dollars in lawful currency of the United States
of America.
"DOMESTIC LENDING OFFICE" means the office of each Lender specified as
its "Domestic Lending Office" opposite its name on SCHEDULE 1.1 hereto, or on
the Assignment and Acceptance pursuant to which such Lender becomes a party to
this Agreement, or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the date on which this Agreement becomes
effective in accordance with Section 8.7.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters (including, without limitation, any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances or petroleum
products (including crude oil or any fraction thereof)) as now or at any time
hereafter in effect.
"EQUITY" means, as to any Person at any date, the consolidated total
assets of such Person less consolidated total liabilities of such Person at such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"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 RESERVE REQUIREMENTS" means, for any day as applied to a
LIBO Rate Loan, the aggregate (without duplication) of the rates (expressed to
the nearest 1/100th of 1%) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for Eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board)
maintained by any Lender.
- 5 -
<PAGE> 10
"EURODOLLAR LENDING OFFICE" means the office of each Lender specified
as its "Eurodollar Lending Office" opposite its name on SCHEDULE 1.1 hereto, or
on the Assignment and Acceptance pursuant to which such Lender becomes a party
to this Agreement or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.1.
"EXISTING CREDIT FACILITIES" means the Borrower's existing bilateral
credit facilities described on SCHEDULE 3.1 attached hereto.
"EXISTING DATE" has the meaning specified in Section 2.13(a).
"FACILITY FEE" has the meaning set forth in Section 2.7(a).
"FEDERAL FUNDS RATE" means, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"FIXED RATE BORROWING" means a Borrowing comprised of Fixed Rate Loans.
"FIXED RATE LOAN" means a Type of Competitive Bid Loan which bears
interest at a fixed rate per annum.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GOVERNMENT CONTRACT" means any contract with or made at the request of
any government or department or agency thereof.
"HEDGING ARRANGEMENTS" means, collectively, (i) any forward contracts,
futures contracts, foreign exchange contracts, currency swap agreements and
other similar agreements and arrangements entered into by the Borrower or any of
its Subsidiaries to protect the Borrower or any Subsidiary against fluctuations
in foreign exchange rates, and (ii) any forward contracts, futures contracts,
interest rate exchange agreements, interest rate cap agreements, interest rate
collar agreements, and other similar arrangements and agreements entered into by
the Borrower or any of its Subsidiaries with respect to fluctuations in interest
rates.
- 6 -
<PAGE> 11
"HAZARDOUS MATERIALS" shall mean any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances or petroleum
products (including crude oil or any fraction thereof), defined or regulated as
such in or under any Environmental Law.
"INSOLVENCY" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"INTEREST PERIOD" means, (a) with respect to each LIBO Rate Syndicated
Loan, the period commencing on the Borrowing Date of such Loan or the last day
of the immediately preceding Interest Period with respect to such Loan, as the
case may be, and ending on the numerically corresponding day (or if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months or at the sole discretion of each Lender, 9 or 12 months, as
the Borrower may select in accordance with the terms of this Agreement, and (b)
as to any Competitive Bid Loan, the period commencing on the Borrowing Date with
respect to such Loan and ending on the date specified in the Competitive Bid
Quote submitted in connection with such Loan, which date shall not be earlier
than seven days after the Borrowing Date, nor later than (i) 360 days after the
Borrowing Date, in the case of a Fixed Rate Borrowing, or (ii) 12 months after
the Borrowing Date, in the case of a LIBO Rate Borrowing; provided however, that
if any Interest Period would end on date other than a Business Day, such
Interest Period will be extended to the next succeeding Business Day unless, in
the case of LIBO Rate Borrowings only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day.
"LIBO RATE" means with respect to any Interest Period for any LIBO Rate
Loan, the rate per annum equal to the London InterBank offered rate for deposits
in Dollars for such Interest Period which appears on Telerate Page 3750 as of
11:00 a.m., London time, two (2) Business Days prior to the beginning of such
Interest Period.
"LIBO RATE BORROWING" means a Borrowing comprised of LIBO Rate Loans.
"LIBO RATE COMPETITIVE BID LOAN" means a Type of Competitive Bid Loan
which bears interest at the LIBO Rate plus (or minus) a Margin.
"LIBO RATE LOANS" means LIBO Rate Syndicated Loans and LIBO Rate
Competitive Bid Loans.
"LIBO RATE SYNDICATED LOANS" means a Type of Syndicated Loan which
bears interest at the LIBO Rate plus the Applicable Margin.
"LIEN" means any mortgage, pledge, security interest, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind or nature whatsoever (including, without
limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, the filing of or agreement to give any
financing statement
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<PAGE> 12
under the Uniform Commercial Code of any jurisdiction or any other
similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).
"LOANS" means collectively, Syndicated Loans, Negotiated Bid Loans and
Competitive Bid Loans.
"MARGIN" means, as to any LIBO Rate Competitive Bid Loan, the margin
(expressed as a percentage rate) to be added or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid Quote for such Loan.
"MARGIN STOCK" is defined in Regulation U of the Board of Governors of
the Federal Reserve System, 12 C.F.R. Part 221.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations or property of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its
obligations under this Agreement or the Notes, or (c) the validity or
enforceability of this Agreement or the Notes or the rights or remedies of the
Lenders hereunder or thereunder.
"MATERIAL SUBSIDIARY" means each Subsidiary of the Borrower, whether
now existing or hereafter created, which constitutes a "significant subsidiary"
as such term is defined in Regulation S-X of the Securities and Exchange
Commission as in effect on the Closing Date.
"MATURITY DATE" means the earlier of (a) November 6, 2001 or, if
extended as described in Section 2.13, then the date as so extended, and (b) the
date of termination in whole of the Commitments pursuant to Section 2.12 or
Section 6.1.
"MOODY'S" means Moody's Investors Services, Inc.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NEGOTIATED BID LOAN" means a Loan from a Lender to the Borrower
outstanding pursuant to this Agreement and made pursuant to the procedure set
forth in Section 2.4 (which Loan may exceed the individual Commitment of such
Lender).
"NEGOTIATED BID NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of EXHIBIT C hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
Negotiated Bid Loans made by such Lender.
"NOTES" means, collectively, the Competitive Bid Notes, the Negotiated
Bid Notes and the Syndicated Notes.
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<PAGE> 13
"OBLIGATIONS" means any and all obligations of the Borrower for the
payment of money hereunder or in respect hereof, whether absolute or contingent,
including without limitation, all obligations of the Borrower for the payment of
(i) principal and interest on the Loans and (ii) Facility Fees, expenses,
reimbursements and indemnifications hereunder.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED LIENS" means only the Liens permitted in clauses (i) through
(xii) of Section 5.2(b) hereof.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PLAN" means, at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"REGISTER" has the meaning specified in Section 8.5(c).
"REORGANIZATION" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16., .18, .19 or .20 of PBGC Reg. Section
4043.
"REQUIRED LENDERS" means, (a) so long as any Lender has a Commitment
outstanding hereunder, Lenders holding 51% or greater of the aggregate
Commitments at such time (whether used or unused), and (b) if the Commitments
have been terminated, Lenders holding 51% or greater of the aggregate Loans
outstanding hereunder.
"RESPONSIBLE OFFICER" means the chief executive officer, the president,
the chief financial officer, or the treasurer of the Borrower.
"SINGLE EMPLOYER PLAN" means any plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
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<PAGE> 14
"SUBSIDIARY" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Persons. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"SYNDICATED BORROWING" means a Borrowing comprised of Syndicated Loans.
"SYNDICATED LOAN" means a Loan from a Lender to the Borrower pursuant
to its Commitment established in Section 2.1. Each Syndicated Loan shall be
either a LIBO Rate Syndicated Loan or a Base Rate Loan.
"SYNDICATED NOTE" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of EXHIBIT A hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
Syndicated Loans made by such Lender.
"TANGIBLE NET WORTH" means, as to any Person at any date, consolidated
total assets (less intangibles) less consolidated total liabilities of such
Person at such date.
"TAXES" has the meaning specified in Section 2.23(a).
"TOTAL CAPITALIZATION" means, as to any Person at any date, the sum of
Total Debt plus Equity of such Person at such date. Unless otherwise qualified,
all references to "Total Capitalization" shall refer to the Total Capitalization
of the Borrower and its Subsidiaries on a consolidated basis.
"TOTAL DEBT" means, as to any Person at any date, the aggregate amount
of all Debt of such Person. Unless otherwise qualified, all references to "Total
Debt" shall refer to the Total Debt of the Borrower and its Subsidiaries on a
consolidated basis.
"TYPE" of Loan refers to the manner of computing an interest charge on
a particular Syndicated Loan or Competitive Bid Loan. The Types of Syndicated
Loans are Base Rate Loans and LIBO Rate Syndicated Loans; and the Types of
Competitive Bid Loans are Fixed Rate Loans and LIBO Rate Competitive Bid Loans.
SECTION 1.2 COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the work "from" means "from and including" and the words "to" and "until" mean
"to but excluding."
SECTION 1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistently applied,
except as otherwise stated herein.
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<PAGE> 15
ARTICLE 2
AMOUNTS AND TERMS OF THE COMMITMENTS AND LOANS
----------------------------------------------
SECTION 2.1 COMMITMENTS. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Syndicated Loans to the Borrower, at
any time and from time to time on and after the Effective Date and until the
Maturity Date, in an aggregate principal amount at any one time outstanding not
to exceed such Lender's Commitment subject, however, to the conditions that (i)
at no time shall (A) the sum of (x) the outstanding aggregate principal amount
of all Syndicated Loans made by all Lenders plus (y) the outstanding principal
amount of all Competitive Bid Loans made pursuant to this Agreement plus (z) the
outstanding principal amount of all Negotiated Bid Loans made pursuant to this
Agreement exceed (B) the sum of the Commitments and (ii) at all times the
outstanding aggregate principal amount of all Syndicated Loans made by each
Lender shall equal the product of (A) the percentage which its Commitment
represents of the aggregate Commitments multiplied by (B) the outstanding
aggregate principal amount of all Syndicated Loans. The Commitments may be
increased as provided in Section 2.14 and may be terminated or reduced from time
to time by the Borrower pursuant to Section 2.12.
(b) Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow Syndicated Borrowings, Competitive Bid Borrowings and Negotiated
Bid Loans pursuant to this Agreement, on and after the Effective Date and prior
to the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
(c) The proceeds of each Loan shall be used by the Borrower initially,
to repay the Debt outstanding pursuant to the Existing Credit Facilities and
thereafter, for general corporate purposes.
SECTION 2.2 LOANS. (a) Each Syndicated Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; PROVIDED, HOWEVER, that the failure of any Lender to make any
Syndicated Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by any such other Lender). Each Competitive Bid Loan shall be made as
requested by the Borrower and in accordance with the procedure set forth in
Section 2.3. Each Negotiated Bid Loan shall be made as requested by the Borrower
and in accordance with the procedure set forth in Section 2.4. The Syndicated
Loans or Competitive Bid Loans comprising any Borrowing shall be (i) in the case
of a Competitive Bid Borrowing, in an aggregate principal amount which is an
integral multiple of $1,000,000 and not less than $5,000,000, subject to the
proviso in Section 2.3(c)(iii), and (ii) in the case of a Syndicated Borrowing,
in an aggregate principal amount which is an integral multiple of $1,000,000 and
not less than $10,000,000 (or an aggregate principal amount equal to the
remaining balance of the available Commitments).
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<PAGE> 16
(b) Each Competitive Bid Borrowing shall be comprised entirely of LIBO
Rate Loans or Fixed Rate Loans, and each Syndicated Borrowing shall be comprised
entirely of LIBO Rate Loans or Base Rate Loans, as the Borrower may request
pursuant to Section 2.3 or 2.5, as applicable. Borrowings of more than one Type
may be outstanding at the same time; PROVIDED, HOWEVER, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than thirty (30) LIBO Rate Syndicated Borrowings and/or
Competitive Bid Borrowings outstanding hereunder at any one time. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate Borrowings.
(c) Except for Negotiated Bid Loans, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 1:00 p.m., New York City time, and the Administrative Agent shall
by 3:00 p.m., New York City time, credit the amounts so received to the general
deposit account of the Borrower with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders. Competitive Bid Loans shall be made by the Lender or Lenders whose
Competitive Bid Quotes therefor are accepted pursuant to Section 2.3 in the
amount so accepted and Syndicated Loans shall be made by the Lenders pro rata in
accordance with Section 2.5. Negotiated Bid Loans shall be made available
directly to the Borrower by the Lender making such Negotiated Bid Loan in
accordance with procedures agreed to by such Lender with the Borrower. Unless
the Administrative Agent shall have received notice from a Lender prior to any
proposed Borrowing Date that such Lender will not make available to the
Administrative Agent such Lender's portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the Borrowing Date in accordance with this paragraph (c)
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date, and in the event Lenders
remain party to this Agreement pursuant to Section 2.13 with Commitments
expiring on the Existing Date, the Borrower shall not be entitled to request any
Borrowing if the Interest Period requested with respect thereto would end after
the Existing Date unless the sum of (i) the available amount of the Commitments,
plus (ii) the outstanding principal
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<PAGE> 17
amount of Base Rate Borrowings, plus (iii) Borrowings with Interest Periods
ending on or prior to the Existing Date equals or exceeds the amount of the
Commitments expiring on the Existing Date.
SECTION 2.3 COMPETITIVE BID PROCEDURE. (a) Each Lender hereby agrees,
on the terms and conditions hereinafter set forth, to entertain requests from
the Borrower, from time to time on any Business Day during the period from the
Effective Date until the date seven (7) days prior to the Maturity Date to make
Competitive Bid Loans, PROVIDED that the aggregate principal amount of all Loans
outstanding at any one time owing to the Lenders shall not exceed the aggregate
amount of the Commitments in effect at such time. Each Lender may, but shall
have no obligation to, make such offers, and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth herein.
(b) The Borrower may request Competitive Bid Loans by delivering a duly
completed Competitive Bid Request substantially in the form of EXHIBIT D-1 to
the Administrative Agent by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission, not later than 11:00 a.m. (New York City
time) four (4) Business Days prior to the proposed Borrowing Date (in the case
of a LIBO Rate Competitive Bid Request), and not later than 3:00 p.m. (New York
City time) one (1) Business Day prior to the proposed Borrowing Date (in the
case of a Fixed Rate Competitive Bid Request). A Competitive Bid Request which
does not conform substantially to the form of EXHIBIT D-1 may be rejected by the
Administrative Agent in the Administrative Agent's sole discretion and the
Administrative Agent shall promptly notify the Borrower of such rejection by
facsimile transmission or by telephone, immediately confirmed by facsimile
transmission. Such Competitive Bid Request shall in each case refer to this
Agreement and specify (i) that the Competitive Bid Borrowing is being requested
pursuant to this Agreement, (ii) whether the Competitive Bid Borrowing then
being requested is to be comprised of LIBO Rate Loans or Fixed Rate Loans, (iii)
the proposed Borrowing Date for such Competitive Bid Borrowing (which shall be a
Business Day) and the amount of such requested Competitive Bid Borrowing which
shall be in a minimum principal amount of $5,000,000 and in integral multiples
of $1,000,000, and (iv) the Interest Period with respect thereto (which may not
end after the Maturity Date). Promptly after its receipt of a Competitive Bid
Request which is not rejected as aforesaid, the Administrative Agent shall
invite by telecopier the Lenders (in the form set forth in EXHIBIT D-2 attached
hereto), on the terms and conditions of this Agreement, to make Competitive Bid
Quotes pursuant to the Competitive Bid Request. The Borrower may request
Competitive Bid Quotes for up to four separate Interest Periods in a single
Competitive Bid Request, provided that each requested Competitive Bid Borrowing
shall satisfy the minimum borrowing requirement set forth above.
(c) (i) Each Lender may, in its sole discretion, make one or more
Competitive Bid Quotes to the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid Quote by a Lender must be received by the Administrative
Agent via facsimile, substantially in the form of EXHIBIT D-3 hereto, (1) in the
case of a LIBO Rate Competitive Bid Loan, not later than 9:30 a.m., New York
City time, three (3) Business Days before the proposed Competitive Bid Borrowing
comprised of LIBO Rate Loans and (2) in the case of a Fixed Rate Loan, not later
than 9:30 a.m., New York City time, on the Borrowing Date of a proposed
Competitive Bid Borrowing comprised
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<PAGE> 18
of Fixed Rate Loans. Multiple bids will be accepted by the Administrative Agent.
Competitive Bid Quotes that do not conform substantially to the form of EXHIBIT
D-3 may be rejected by the Administrative Agent acting in consultation with the
Borrower, and the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid
Quote shall refer to this Agreement and specify (x) the principal amount (which
shall be in a minimum principal amount of $5,000,000 and in an integral multiple
of $1,000,000 and which may equal the entire principal amount of the Competitive
Bid Borrowing requested by the Borrower) of the Competitive Bid Loan or Loans
that the Lender is willing to make to the Borrower, (y) the Competitive Bid Rate
or Rates at which the Lender is prepared to make the Competitive Bid Loan or
Loans and (z) the Interest Period and the last day thereof. A Competitive Bid
Quote submitted by a Lender pursuant to this paragraph (c)(i) shall be
irrevocable.
(ii) The Administrative Agent shall promptly notify the
Borrower by telecopy of all the Competitive Bid Rates and the principal amount
of each Competitive Bid Loan in respect of which a Competitive Bid Quote was
made and the identity of the Lender that made each bid. The Administrative Agent
shall send a copy of all Competitive Bid Quotes to the Borrower for its records
as soon as practicable after completion of the bidding process set forth in this
Section 2.3.
(iii) The Borrower shall before 10:30 a.m. (New York City
time) three (3) Business Days before the proposed Borrowing Date in the case of
a LIBO Rate Competitive Bid Request and before 10:30 a.m. (New York City time)
on the proposed Borrowing Date in the case of a Fixed Rate Competitive Bid
Request either, in its absolute discretion:
(A) cancel such Competitive Bid Request by giving the
Administrative Agent telephonic notice to that effect, in
which event the Competitive Bid Loans requested thereby shall
not be made, or
(B) accept one or more of the offers made by the Lenders
pursuant to clause (i) above by giving telephonic notice
(immediately confirmed by execution and facsimile transmission
of a Competitive Bid Loan Confirmation) to the Administrative
Agent of the amount of Competitive Bid Loans to be made to the
Borrower and the Competitive Bid Quotes accepted by the
Borrower with respect thereto; PROVIDED THAT, the Borrower may
not accept offers for Competitive Bid Loans in an aggregate
principal amount in excess of the maximum principal amount
requested in the related Competitive Bid Request;
PROVIDED, HOWEVER, that (1) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in this paragraph
(c) , (2) the Borrower shall not accept a bid made at a particular Competitive
Bid Rate if the Borrower has decided to reject a bid made at a lower Competitive
Bid Rate, (3) the aggregate amount of the Competitive Bid Quotes accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (4) if the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by the Borrower to exceed the amount
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<PAGE> 19
specified in the Competitive Bid Request, then the Borrower shall accept a
portion of such bid or bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bid Quotes
accepted with respect to such Competitive Bid Request, which acceptance, in the
case of multiple bids at the same Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such bid at such Competitive Bid Rate, and
(5) except pursuant to clause (4) above, no bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED FURTHER,
HOWEVER, that if a Competitive Bid Loan must be in an amount less than
$5,000,000 because of the provisions of clause (4) above, such Competitive Bid
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (4) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Borrower. A notice given by the Borrower pursuant to this
paragraph (c)(iii) shall be irrevocable.
(d) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid Quote has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loans in respect
of which its bid has been accepted.
(e) If the Administrative Agent shall elect to submit a Competitive Bid
Quote in its capacity as a Lender, it shall submit such bid directly to the
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Administrative Agent pursuant
to paragraph (c) above.
SECTION 2.4 NEGOTIATED BID LOANS. Each Lender agrees, on the terms and
conditions hereinafter set forth, to entertain requests from the Borrower, from
time to time during the period from the Effective Date to and including the
Maturity Date to make Negotiated Bid Loans to the Borrower; PROVIDED, that the
Lenders shall have no obligation to make any Negotiated Bid Loan, and the
Borrower shall have no obligation to accept any offer to make any Negotiated Bid
Loan. Each Negotiated Bid Loan shall be on such terms, including, but not
limited to, amount, maturity, interest rate, currency, prepayment terms,
Relevant Rate, Dollar Equivalent, place of payment, and compensation for
increased costs, as the Borrower and the applicable Lender shall agree in
connection with the making thereof; PROVIDED that the aggregate principal amount
in Dollars (or the Dollar Equivalent of any other currency) of all Loans
outstanding at any one time owing to the Lenders shall not exceed the aggregate
amount of the Commitments in effect at such time; PROVIDED, FURTHER, that no
Negotiated Bid Loan shall have a maturity date subsequent to the Maturity Date.
SECTION 2.5 SYNDICATED LOANS. In order to request a Syndicated
Borrowing, the Borrower shall give notice to the Administrative Agent in
writing, by facsimile, or by telephone promptly confirmed in writing, in the
form of a Notice of Syndicated Borrowing substantially in the form of EXHIBIT E
attached hereto given (x) with respect to a Syndicated Borrowing comprised of
Base Rate Loans, not later than 11:00 a.m. (New York City time) on the date of
the proposed
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<PAGE> 20
Syndicated Borrowing, and (y) with respect to a Syndicated Borrowing comprised
of LIBO Rate Loans, not later than 11:00 a.m. (New York City time) on the third
Business Day prior to the Borrowing Date of the proposed Syndicated Borrowing,
by the Borrower to the Administrative Agent. Each such Notice of Syndicated
Borrowing shall specify (i) that the Syndicated Borrowing is being requested
pursuant to this Agreement, (ii) the proposed Borrowing Date of such Syndicated
Borrowing (which shall be a Business Day); (iii) the principal amount of such
Syndicated Borrowing; (iv) the Type of Syndicated Borrowing; and (v) in the case
of a Syndicated Borrowing comprised of LIBO Rate Loans, the initial Interest
Period for such Syndicated Borrowing. If no election of a Type of Syndicated
Borrowing is specified in any such Notice of Syndicated Borrowing, the Borrower
shall be deemed to have requested a Syndicated Borrowing comprised of Base Rate
Loans. If no Interest Period is specified in any such Syndicated Loan Request
with respect to a Syndicated Borrowing comprised of LIBO Rate Loans, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall promptly advise the Lenders in writing
of any Notice of Syndicated Borrowing given pursuant to this Section 2.5 and of
each such Lender's portion of the requested Syndicated Borrowing.
SECTION 2.6 VOLUNTARY CONVERSION AND CONTINUATION OF SYNDICATED LOANS.
The Borrower may elect to Convert a Syndicated Borrowing of one Type into a
Syndicated Borrowing of another Type or to continue a Syndicated Borrowing
comprised of LIBO Rate Loans by written notice to the Administrative Agent (i)
not later than 12:00 noon (New York City time), one (1) Business Day prior to
conversion in the case of the Conversion of a Syndicated Borrowing comprised of
LIBO Rate Loans to a Syndicated Borrowing comprised of Base Rate Loans, and (ii)
not later than 12:00 noon (New York City time) three (3) Business Days prior to
Conversion or continuation in the case of a Conversion of a Syndicated Borrowing
comprised of Base Rate Loans to a Syndicated Borrowing comprised of LIBO Rate
Loans or a continuation of any Syndicated Borrowing comprised of LIBO Rate Loans
for an additional Interest Period, subject in each case to the following:
(a) each Conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the Converted or continued Syndicated
Borrowing;
(b) if less than all of the outstanding principal amount of a
Syndicated Borrowing shall be Converted or continued, the aggregate
principal amount of such Converted or continued Syndicated Borrowing
shall be a minimum amount of $10,000,000 and in integral multiples of
$1,000,000;
(c) a LIBO Rate Syndicated Borrowing may only be Converted or
continued on the last day of the Interest Period with respect thereto;
and
(d) no Interest Period may be selected with respect to any
Syndicated Borrowing that would end later than the Maturity Date or, if
as a result thereof, more than thirty (30) Borrowings comprised of
LIBO Rate Loans and/or Competitive Bid Loans would be outstanding
hereunder.
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<PAGE> 21
Each notice pursuant to this Section 2.6 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the
Syndicated Borrowing that the Borrower requests be Converted or continued, (ii)
whether such Syndicated Borrowing is to be Converted to or continued as a
Syndicated Borrowing comprised of LIBO Rate Loans or a Syndicated Borrowing
comprised of Base Rate Loans, (iii) if such notice requests a Conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Syndicated Borrowing is to Converted or continued as LIBO Rate Loans, the
Interest Period with respect thereto. If no Interest Period is specified in such
notice with respect to a Syndicated Borrowing comprised of LIBO Rate Loans, the
Borrower shall be deemed to have requested an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders in writing of any
notice given pursuant to this Section 2.6 and of each such Lender's portion of
any Converted or continued Syndicated Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.6 to continue any Syndicated
Borrowing comprised of LIBO Rate Loans prior to the expiration of the relevant
Interest Period with respect thereto, such Syndicated Borrowing shall convert to
a Borrowing comprised of Base Rate Loans on the last day of such Interest
Period.
SECTION 2.7 FEES. (a) The Borrower shall pay to each Lender, through
the Administrative Agent, a facility fee (the "Facility Fee") from the Closing
Date through the Maturity Date at the following rates per annum, based upon the
higher of the long-term unenhanced senior unsecured debt ratings assigned to the
Borrower by Standard & Poor's and Moody's in effect on the last day of each
quarterly computation period, multiplied by such Lender's Commitment, whether
used or unused; provided that, in the event that one of such ratings is lower
than BBB- or Baa3, the applicable fee percentage shall be .225%.
<TABLE>
<CAPTION>
Applicable Fee
S&P and Moody's Rating Percentage
---------------------- ----------
<S> <C>
Lower than BBB- or Baa3 0.225%
BBB- or Baa3 0.150%
BBB or Baa2 0.125%
BBB+ or Baa1 0.090%
A- or A3 0.075%
A or A2 0.070%
Higher than A or A2 0.065%
</TABLE>
The Facility Fee shall be payable quarterly in arrears on the date of the close
of each fiscal quarter of the Borrower during the term of such Lender's
Commitment, commencing December 31, 1996, and continuing thereafter on each such
quarterly closing date and on the Maturity Date. If Standard & Poor's or Moody's
shall significantly change its rating system during the term of the Commitments,
the Borrower and the Lenders shall negotiate in good faith to revise the rate of
the Facility Fee and pending such revision, the last such rate in effect prior
to such change shall apply. As of the Closing Date, the applicable facility fee
percentage is equal to 0.075% per annum.
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<PAGE> 22
(b) The Borrower agrees to pay to the Administrative Agent and the
Managing Agents, for their own respective accounts, such fees at the times and
in the amounts agreed to by such parties from time to time.
(c) All Facility Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, as appropriate,
among the Lenders. Once paid in accordance with this Section 2.7, the fees shall
be non-refundable in the absence of manifest error.
SECTION 2.8 REPAYMENT OF LOANS; NOTES. (a) The Borrower shall repay the
unpaid principal amount of each Loan (i) in the case of a Competitive Bid Loan,
on the last day of the Interest Period applicable to such Loan, (ii) in the case
of a Negotiated Bid Loan, on the date agreed to with the relevant Lender for
repayment of such Loan, and (iii) in the case of a Syndicated Loan, on the
Maturity Date. Each Loan shall bear interest from the date thereof until payment
in full as set forth in Section 2.9.
(b) Each Syndicated Loan, Competitive Bid Loan and Negotiated Bid Loan
outstanding to a Lender pursuant to this Agreement shall be evidenced by a
Syndicated Note, Competitive Bid Note, or Negotiated Bid Note, respectively,
with appropriate insertions. Each Lender is hereby authorized to record the date
and amount of each Loan made by such Lender, the maturity date thereof, the date
and amount of each payment of principal thereof and the interest rate with
respect thereto on the schedule annexed to and constituting part of the relevant
Note or in the books and records of such Lender in such manner as is reasonable
and customary, and any such recordation, together with the records of the
Administrative Agent, in the absence of manifest error, shall constitute prima
facie evidence of the accuracy of the information so recorded, PROVIDED that the
failure to make any such recordation shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Note shall be dated the Closing Date
and each Loan evidenced thereby shall bear interest as specified in Section 2.9.
SECTION 2.9 INTEREST ON LOANS. The Borrower shall pay interest on the
unpaid principal amount of each Loan made by a Lender from the Borrowing Date
with respect to such Loan until such principal amount shall be paid in full, at
one of the following rates per annum selected by the Borrower:
(i) BASE RATE LOANS. In the case of a Base Rate Loan, a rate
per annum equal at all times to the Base Rate in effect from time to
time, payable quarterly in arrears on the date of the close of the
fiscal quarter of the Borrower, commencing December 31, 1996, and
continuing thereafter on each such quarterly closing date during such
period that such Base Rate Loan is outstanding and on the date such
Base Rate Loan shall be Converted or paid in full;
(ii) LIBO RATE SYNDICATED LOANS. In the case of a LIBO Rate
Syndicated Loan, a rate per annum equal at all times during each
Interest Period for such Syndicated Loan to the sum of the LIBO Rate
for such Interest Period for such Loan plus the Applicable Margin,
- 18 -
<PAGE> 23
payable on the last day of such Interest Period and, if such Interest
Period is more than three months in duration, on each day which occurs
during such Interest Period every three months from the first day of
such Interest Period;
(iii) LIBO RATE COMPETITIVE BID LOANS. In the case of a LIBO
Rate Competitive Bid Loan, a rate per annum equal at all times during
the Interest Period for such Competitive Bid Loan equal to the LIBO
Rate for such Interest Period plus (or minus) the Margin agreed to with
respect to such Loan in the Competitive Bid Quote relating thereto,
payable on the last day of such Interest Period and, if such Interest
Period is more than three months in duration, on each day which occurs
during such Interest Period every three months from the first day of
such Interest Period;
(iv) FIXED RATE LOANS. With respect to Fixed Rate Loans, for
the Interest Period relating to such Fixed Rate Loan, at the fixed rate
of interest per annum agreed to for such Competitive Bid Loan in the
Competitive Bid Quote relating thereto, payable on the last day of such
Interest Period and, if such Interest Period is more than 90 days, each
day which occurs during such Interest Period every 90 days from the
first day of such Interest Period; and
(v) NEGOTIATED BID LOANS. With respect to Negotiated Bid
Loans, at the per annum interest agreed to by the Lender making such
Loan and the Borrower with respect thereto, payable on the dates agreed
to by the relevant Lender and the Borrower with respect thereto.
SECTION 2.10 DEFAULT INTEREST. If the Borrower shall default in the
payment of principal of any Loan becoming due hereunder (whether at stated
maturity, by acceleration or otherwise) such principal amount shall bear
interest, from the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal at all times to the greater
of (x) the Base Rate in effect from time to time plus two percent (2%) per annum
and (y) in the case of a LIBO Rate Loan, Fixed Rate Loan or Negotiated Bid Loan,
the rate of interest otherwise applicable to such Loan plus two percent (2%) per
annum, or in the case of a Negotiated Bid Loan, as may otherwise have been
agreed in writing by the Borrower and the relevant Lender.
SECTION 2.11 INTEREST RATE DETERMINATION AND PROTECTION. (a) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Administrative Agent with respect
to any Syndicated Borrowing hereunder.
(b) Any change in the interest rate on a Base Rate Loan resulting from
a change in the Base Rate shall become effective as of the opening of business
on the day on which such change in the Base Rate is announced. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change; PROVIDED, that
any failure to do so shall not relieve the Borrower of any liability hereunder.
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<PAGE> 24
(c) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower in the absence of manifest error.
SECTION 2.12 TERMINATION OR REDUCTION OF THE COMMITMENTS. (a) The
Commitments shall automatically terminate on the Maturity Date unless extended
pursuant to Section 2.13.
(b) The Borrower shall have the right, upon at least five (5) Business
Days' prior written notice to the Administrative Agent and without penalty, to
permanently terminate in whole or permanently reduce in part the Commitments,
PROVIDED, that (i) each partial reduction of the Commitments shall be in the
aggregate amount of $5,000,000 and in an integral multiple of $1,000,000, and
(ii) no such termination or reduction shall be made which would reduce the
aggregate Commitments to an amount less than the aggregate outstanding principal
amount of the then outstanding Loans.
(c) Each reduction of the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, the Facility Fees on the amount of
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.13 EXTENSION OF COMMITMENTS. (a) The Borrower may, by written
notice to the Administrative Agent (which shall promptly deliver a copy to each
of the Lenders), given not more than sixty (60) days prior to any anniversary of
the Closing Date while the Commitments are in effect, request that the Lenders
extend the then scheduled Maturity Date (the "Existing Date") for an additional
one-year period. Each Lender shall, by notice to the Borrower and the
Administrative Agent given within fifteen (15) Business Days after receipt of
such request, advise the Borrower whether or not such Lender consents to the
extension request (and any Lender which does not respond during such 15-day
period shall be deemed to have advised the Borrower that it will not agree to
such extension).
(b) In the event that, on the 15th Business Day receipt of the notice
delivered pursuant to subsection (a) above, not all of the Lenders shall have
agreed to extend their Commitments, the Borrower shall notify the consenting
Lenders ("Consenting Lenders") of the amount of the Commitments of the
non-extending Lenders ("Non-Consenting Lenders") and such Consenting Lenders
shall, by notice to the Borrower and the Administrative Agent given within ten
(10) Business Days after receipt of such notice, advise the Administrative Agent
and Borrower whether or not such Lender wishes to purchase all or a portion of
the Commitments of the Non-Consenting Lenders (and any Lender which does not
respond during such 10-Business Day period shall be deemed to have rejected such
offer). In the event that more than one Consenting Lender agrees to purchase all
or a portion of such Commitments, the Borrower and the Managing Agents shall
allocate such Commitments among such Consenting Lenders so as to preserve, to
the extent possible, the relative pro rata shares of the Consenting Lenders of
the Commitments prior to such extension request. If
- 20 -
<PAGE> 25
Consenting Lenders do not elect to assume all of the Commitments of the
Non-Consenting Lenders, the Borrower shall have the right to arrange for one or
more banks (any such bank being called an "New Lender"), to purchase the
Commitment of any Non-Consenting Lender. Each Non-Consenting Lender shall assign
its Commitment and the Loans outstanding hereunder to the Consenting Lender or
New Lender purchasing such Commitment in accordance with Section 8.5, in return
for payment in full of all principal, interest and other amounts owing to such
Non-Consenting Lender hereunder, on or before the Existing Date and, as of the
effective date of such assignment, shall no longer be a party hereto, provided
that each New Lender shall be subject to the approval of the Managing Agents
(which approval shall not be unreasonably withheld). If (and only if) Lenders
(including New Lenders) holding Commitments representing at least 75% of the
aggregate Commitments on the date of such extension request shall have agreed to
such extension by the Existing Date (the "Continuing Lenders"), then (i) the
Maturity Date shall be extended for an additional one year and (ii) the
Commitment of any Non-Consenting Lender which has not been assigned to a
Consenting Lender or a New Lender shall terminate (with the result that the
amount of the aggregate Commitments shall be decreased by the amount of such
Commitment), and all Loans of such Non-Consenting Lender shall become due and
payable, together with all interest accrued thereon and all other amounts owed
to such Non-Consenting Lender hereunder, on the Existing Date applicable to such
Lender without giving effect to any extension of the Maturity Date.
(c) In the event that the Maturity Date of the Commitments has been
extended as set forth above but any Non-Consenting Lender remains party to this
Agreement with Commitments expiring on the Existing Date, the Borrower may, at
any time prior to the ninetieth day following the effective date of such
extension, arrange for one or more banks to purchase the Commitment and
outstanding Loans of any such Non-Consenting Lender, with such bank, if not
already a Lender hereunder, to be subject to the prior approval of the
Administrative Agent (which approval shall not be unreasonably withheld), and
such Non-Consenting Lender shall assign its Commitment and Loans to such bank.
If any Non-Consenting Lender remains party to this Agreement at the time of any
subsequent extension request by the Borrower, Continuing Lenders holding 100% of
the previously extended Commitments must agree to any such extension request in
order for any such further extension to be effective so that at no time shall
there be more than two different maturity dates in effect with respect to this
Agreement.
(d) The effective date of any extension of the Maturity Date shall be
the Existing Date. The Administrative Agent shall enter any modifications made
to the Commitments pursuant to this Section 2.13 in the Register maintained
pursuant to Section 8.5(c).
SECTION 2.14 INCREASE OF COMMITMENTS. (a) The Borrower may from time to
time, by written notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders), request that the Commitments be
increased by an amount that is not less than $50,000,000 and an integral
multiple of $10,000,000 and that will not result in the Commitments exceeding
$600,000,000. Each such notice shall set forth (i) the requested amount of the
increase in the Commitments and (ii) the date on which such increase is to
become effective (which shall be not fewer than forty-five (45) nor more than
sixty (60) days after the date of such notice), and shall offer
- 21 -
<PAGE> 26
each Lender the opportunity to increase its Commitment by its ratable
share, based on the pro rata amounts of the Commitments as of the date of the
requested increase. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not more than fifteen (15) Business Days after the
date of the Borrower's notice, either agree to increase its Commitment by all or
a portion of the offered amount or decline to increase its Commitment (and any
Lender that does not deliver such a notice within such period of fifteen (15)
Business Days shall be deemed to have declined to increase its Commitment).
(b) In the event that, on the 15th Business Day after the Borrower
shall have delivered a notice pursuant to paragraph (a) above, the Lenders shall
have agreed pursuant to paragraph (a) above to increase their Commitments by an
aggregate amount less than the increase in the Commitments requested by the
Borrower, the Borrower shall offer to the Lenders who have agreed to the ratable
increase (the "Increasing Lenders"), the right to increase their Commitments by
such unsubscribed amount. Each such Increasing Lender shall, by notice to the
Borrower and the Administrative Agent given not more than ten (10) Business Days
after such request, advise the Borrower whether it has elected to an additional
increase of all or any portion of such unsubscribed amount (and any Increasing
Lender that does not deliver such a notice within such period of ten (10)
Business Days shall be deemed to have declined to further increase its
Commitment). In the event that more than one Increasing Lender elects to further
increase its Commitment, the Borrower and the Managing Agents shall allocate
such additional amount so as to preserve, to the extent possible, the relative
pro rata shares of the Increasing Lenders prior to such request. If the
Increasing Lenders do not subscribe for the total unsubscribed amount, the
Borrower shall have the right to arrange for one or more banks (any such bank
being called an "Augmenting Lender") to extend Commitments in an aggregate
amount equal to the unsubscribed amount, provided that each Augmenting Lender
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld).
(c) If (and only if) Lenders (including Augmenting Lenders) shall have
agreed to increase their Commitments or to extend new Commitments in an
aggregate amount not less than $50,000,000, such increases and such new
Commitments shall become effective on the date specified in the notice delivered
by the Borrower pursuant to paragraph (a); provided that the Borrower and any
Augmenting Lender shall deliver such Notes, opinions, certificates and other
documentation as may be requested by the Administrative Agent as of such date.
The Administrative Agent shall enter any modifications made to the Commitments
in the Register maintained pursuant to Section 8.5(c).
SECTION 2.15 OPTIONAL PREPAYMENTS. (a) The Borrower shall have the
right, upon same Business Day's notice to the Administrative Agent (received by
10:00 a.m. (New York City time)) with respect to Syndicated Borrowings comprised
of Base Rate Loans and at least three (3) Business Days' prior written notice to
the Administrative Agent with respect to Syndicated Borrowings comprised of LIBO
Rate Loans and with respect to Competitive Bid Loans, to prepay the outstanding
amount of such Syndicated Borrowings or Competitive Bid Borrowing, without
premium or penalty, in whole or in part together with accrued interest to the
date of such prepayment on the amount prepaid; PROVIDED, that any prepayment of
any Syndicated Borrowing comprised of LIBO Rate Loans
- 22 -
<PAGE> 27
or Competitive Bid Borrowings shall be made on, and only on, the last day of an
Interest Period for such Borrowing unless accompanied by any payment imposed in
connection with such prepayment pursuant to Section 2.19; and PROVIDED, FURTHER,
that each partial prepayment shall be in an aggregate principal amount not less
than $10,000,000 and in integral multiples of $1,000,000. The Borrower shall not
have the right to prepay any Negotiated Bid Loan except as agreed by the
relevant Lender.
(b) Each notice of prepayment shall specify the prepayment date and the
principal amount of the Borrowing (or portion thereof) to be prepaid and shall
be irrevocable. The Administrative Agent shall promptly notify the Lenders of
any notice received pursuant to this Section 2.15.
SECTION 2.16 INABILITY TO DETERMINE INTEREST RATE. In the event that
(i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the interbank Eurodollar market, adequate and reasonable means do not
exist for ascertaining the LIBO Rate applicable for any requested Interest
Period with respect to a Syndicated Borrowing comprised of LIBO Rate Loans
requested hereunder or (ii) the Required Lenders shall have informed the
Administrative Agent in writing that the LIBO Rate will not adequately and
fairly reflect the cost to such Lenders of making or maintaining its LIBO Rate
Syndicated Loans during the Interest Period, the Administrative Agent shall
forthwith give telecopy notice, confirmed in writing, of such determination to
the Borrower and the Lenders at least one day prior to the first day of such
Interest Period for such Syndicated Borrowing comprised of LIBO Rate Loans. If
such notice is given, (x) any requested Syndicated Borrowing comprised of LIBO
Rate Loans may be made as a Base Rate Borrowing if the Borrower wishes to make
the Borrowing on such terms and so notifies the Administrative Agent; (y) any
Base Rate Borrowings that were to have been Converted to Syndicated Borrowings
comprised of LIBO Rate Loans shall be continued as Base Rate Borrowings and (z)
any outstanding Syndicated Borrowings comprised of LIBO Rate Loans shall be
Converted, on the last day of such Interest Period, to Base Rate Borrowings.
Until such notice has been withdrawn by the Administrative Agent or the Required
Lenders, as the case may be, no further Syndicated Borrowings comprised of LIBO
Rate Loans shall be made or continued as such nor shall the Borrower have the
right to Convert Base Rate Borrowings to Syndicated Borrowings comprised of LIBO
Rate Loans.
SECTION 2.17 INCREASED COSTS. (a) In the event that (i) the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of the Eurocurrency Reserve Requirements) in or in the
interpretation of any law or regulation or (ii) the compliance with any request
or directive from any central bank or other Governmental Authority (whether or
not having the force of law), made subsequent to the date hereof:
(x) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, the Notes or any LIBO Rate Loan made by
it, or change the basis of taxation of payments to the Lender in
respect thereof (except for taxes covered by Section 2.23 and changes
in the rate of tax on the overall net income of such Lender);
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<PAGE> 28
(y) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBO Rate hereunder; or
(z) shall impose on any Lender any other condition;
and the result of any of the foregoing is to increase the cost of such Lender,
by an amount which the Lender reasonably deems to be material, of making,
Converting into, continuing or maintaining LIBO Rate Loans or to reduce any
amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall promptly pay to such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this section, it shall promptly notify the Borrower of the
event by reason of which it has become so entitled (with a copy to the
Administrative Agent). A certificate setting forth in reasonable detail the
calculation of any additional amounts payable pursuant to this section
(PROVIDED, HOWEVER, that such certificate need not disclose information not made
available to the public), submitted by any Lender to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder for a period of one year.
(b) In the event that any Lender shall have determined that the
introduction of or any change (other than any change by way of imposition or
increase of the Eurocurrency Reserve Requirements), in any law or regulation
regarding capital adequacy or in the interpretation or application of or
compliance by any Lender or any affiliate of a Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such Lender's or such
affiliate's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such affiliate could have achieved but for such
change or compliance (taking into consideration such Lender's or such
affiliate's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor (which request shall set forth in reasonable detail the
calculation of such additional amount; PROVIDED, HOWEVER, that such request need
not disclose information not made available to the public), the Borrower shall
pay to such Lender such additional amount as will compensate such Lender for
such reduction.
(c) Notwithstanding the foregoing, each Lender shall make written
demand on the Borrower for indemnification or compensation pursuant to
paragraphs (a) and (b) of this Section 2.17 within thirty (30) Business Days
after such Lender receives actual notice or obtains actual knowledge of the
promulgation of a law, rule, order or interpretation or occurrence of another
event giving rise to a claim pursuant to such paragraphs. In the event that any
Lender fails to give the Borrower the
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<PAGE> 29
notice within the time limitation set forth in the preceding sentence, the
Borrower shall have no obligation to pay such claim for indemnification or
compensation accruing prior to the ninetieth (90th) day preceding such written
demand. Nothing in this Agreement shall prevent any Lender from delivering
successive demands for such indemnification or compensation pursuant hereto.
(d) Each Lender agrees that it will use reasonable efforts to designate
an alternate lending office with respect to any of its Loans affected by the
matters or circumstances described in paragraphs (a) and (b) of this Section
2.17, Section 2.18 or Section 2.23 to reduce the liability of the Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to the Lender as determined by such Lender in its sole
discretion.
SECTION 2.18 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make LIBO Rate
Syndicated Loans or to continue to fund or maintain LIBO Rate Loans hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower (with
a copy to the Administrative Agent), (i) any obligation of such Lender to make
or maintain any LIBO Rate Loans and to Convert Base Rate Loans into LIBO Rate
Syndicated Loans shall terminate, (ii) all LIBO Rate Syndicated Loans then
outstanding, if any, shall be Converted automatically, on the last day of the
Interest Period therefor, or within such earlier period as required by law, to
Base Rate Loans, (iii) the Borrower shall forthwith prepay in full all LIBO Rate
Competitive Bid Loans of such Lender then outstanding, together with interest
accrued thereon, and (iv) if the result any of the foregoing is to increase the
cost to such Lender by an amount which such Lender reasonably deems to be
material, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor (which request shall set
forth in reasonable detail the calculation of such additional amount; PROVIDED,
HOWEVER, that such request need not disclose information not made available to
the public) the Borrower shall pay to such Lender such additional amount.
SECTION 2.19 INDEMNITY. The Borrower agrees to indemnify the Lenders
and to hold the Lenders harmless from any actual and direct loss, cost or
expense which the Lenders may sustain or incur as a consequence of (a) default
by the Borrower in payment when due (at maturity, acceleration or otherwise) of
the principal amount of or interest on any LIBO Rate Loan or Fixed Rate Loan,
(b) default by the Borrower in making a borrowing of, Conversion into or
continuation of a LIBO Rate Loan or Fixed Rate Loan after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making of a prepayment of LIBO Rate Loans or Fixed Rate
Loans on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss or expense
arising from the reemployment of funds obtained by any Lender or from fees
payable to terminate the deposits from which such funds were obtained; PROVIDED,
that the foregoing indemnification shall not apply to any indirect, special,
incidental or consequential damages. This
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<PAGE> 30
covenant shall survive the termination of this Agreement and the payment of the
Notes and all other amounts payable hereunder.
SECTION 2.20 PRO RATA TREATMENT. The parties agree that each Syndicated
Borrowing, each payment or prepayment of principal of any Syndicated Borrowing,
each payment of interest on the Syndicated Loans, each payment of the Facility
Fees with respect to each Lender's Commitment, each reduction of the Commitments
and each refinancing of any Borrowing with a Syndicated Borrowing of any Type,
shall be allocated pro rata among the Lenders in accordance with their
respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Syndicated Loans) after giving effect to any payment or prepayment
or termination or assignment of a Lender's Commitment pursuant to this
Agreement; provided that, in the event of any reallocation of Commitment
percentages due to a non-ratable increase pursuant to Section 2.14, payments of
any Syndicated Borrowings shall be allocated among the Lenders participating in
such Borrowing in accordance with the respective principal amounts of their
outstanding Loans comprising such Syndicated Borrowing. Each payment of
principal of any Competitive Bid Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Bid Loans comprising such
Borrowing. Each payment of interest on any Competitive Bid Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Bid Loans comprising such Borrowing. Each payment of
principal and interest on any Negotiated Bid Loan shall be made solely to the
Lender making such Loan on the terms and conditions as shall be agreed to by the
Borrower and such Lender. For purposes of determining the available Commitments
of the Lenders at any time, each outstanding Competitive Bid Borrowing or
Negotiated Bid Loan shall be deemed to have utilized the Commitments of the
Lenders (including those Lenders which shall not have made Loans as part of such
Competitive Bid Borrowing or such Negotiated Bid Loan) pro rata in accordance
with such respective Commitments. Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.21 SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or through a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Syndicated Loan or Loans as
a result of which the unpaid principal portion of the Syndicated Loans, as
applicable, of such Lender shall be proportionately less than the unpaid
principal portion of the Syndicated Loans, as applicable, of any other Lender,
it shall be deemed simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the purchase price for,
a participation in the Syndicated Loans of such other Lender, so that the
aggregate unpaid principal amount of the Syndicated Loans and participations in
the Syndicated Loans held by each Lender shall be in the same proportion to the
aggregate unpaid
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<PAGE> 31
principal amount of all Syndicated Loans then outstanding as the principal
amount of its Syndicated Loans prior to such exercise of banker's lien, setoff
or counterclaim or other event was to the principal amount of all Syndicated
Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; PROVIDED, HOWEVER, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.21 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Syndicated Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Syndicated Loan
directly to the Borrower in the amount of such participation.
SECTION 2.22 PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Loan or any Facility Fees or other
amounts) hereunder (other than with respect to any Negotiated Bid Loan) not
later than 3:00 p.m. (New York City) time on the date when due in dollars to the
Administrative Agent in immediately available funds. The Borrower shall make
each payment in respect of a Negotiated Bid Loan, including any such Loan
denominated in a currency other than United States dollars, not later than 3:00
p.m. (local time at the place of payment) on the day when due to or for the
account of the Lender making such Loan at such location as agreed by the
Borrower and such Lender in connection with the making of such Negotiated Bid
Loan and in such funds as are at the time customary in such location for the
settlement of international transactions in such currency, or upon such other
terms as such Lender and the Borrower shall agree in connection with the making
thereof.
(b) Whenever any payment hereunder shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall be included in the
computation of interest or Facility Fees, as applicable.
(c) All computations of interest in respect of any Syndicated Loans or
Competitive Bid Loans shall be made by the Lenders on the basis of a 360-day
year for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.
(d) All computations of interest in respect of any Negotiated Bid Loan
shall be on such basis as the Lender making such Loan and the Borrower shall
agree in connection with the arrangement thereof, but, in the event of any
dispute, shall be on the basis of a 360-day year for the actual number of days
(including the first day but excluding the last day) elapsed.
(e) All computations 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, for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such Facility Fees are payable.
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(f) For purposes of this Article 2, the equivalent in United States
Dollars (the "Dollar Equivalent") of any Negotiated Bid Loan in a currency other
than United States Dollars shall be determined using the rate therefor (the
"Relevant Rate") agreed to between the Borrower and the Lender in connection
with the arrangement of such Negotiated Bid Loan.
SECTION 2.23 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes (including without limitation, withholding taxes), levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding, in the case of the Administrative Agent, any Managing Agent or any
Lender, net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent, any Managing Agent or any Lender as
a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Administrative Agent,
any Managing Agent or any Lender (excluding a connection arising solely from the
Administrative Agent, such Managing Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any of the Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent, any Managing Agent or any Lender hereunder or under
any of the Notes, the amounts so payable to the Administrative Agent, such
Managing Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent, such Managing Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are payable by the Borrower as promptly as possible thereafter the
Borrower shall send to the Administrative Agent and the relevant Managing Agent
or Lender a copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, any
Managing Agent or any Lender the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent, any such
Managing Agent and any such Lender for any incremental taxes, interest or
penalties that may become payable by any of them as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable hereunder
for a period of one year.
(b) If any Lender is not incorporated under the laws of the United
States of America or a state thereof, such Lender agrees that it will deliver to
the Borrower (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form.
Each such Lender also agrees to deliver to the Borrower two further copies of
the said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower, and such extensions or renewals thereof as may reasonably be requested
by the Borrower,
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unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower. Each such
Lender shall certify (i) in the case of a Form 1001 or 4224, that it is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or W-9,
that it is entitled to an exemption from United States backup withholding tax.
SECTION 2.24 ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES. In
the event that any Lender shall have delivered a notice or certificate pursuant
to Section 2.17 or 2.18, or the Borrower shall be required to make additional
payments to any Lender under Section 2.23, the Borrower shall have the right, at
its own expense, upon notice to such Lender and the Administrative Agent, to
require such Lender to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 8.5) all its interests,
rights and obligations under this Agreement to another financial institution
selected by the Borrower with the consent of the Managing Agents (which consent
will not be unreasonably withheld) which financial institution shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the Borrower
or the assignee, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such termination or assignment the
principal of and interest accrued to the date of payment on the Loans made by it
hereunder and all other amounts accrued for its account or owed to it hereunder
or under the Notes, including without limitation all amounts owing to such
Lender pursuant to Section 2.19.
ARTICLE 3
CONDITIONS OF LENDING
---------------------
SECTION 3.1 INITIAL CONDITIONS PRECEDENT. The obligation of each Lender
to make its initial Syndicated Loan and the right of the Borrower to request the
making of the initial Negotiated Bid Loan or Competitive Bid Loan are subject to
the conditions precedent that the Administrative Agent shall have received on or
before the earlier of the date of the initial Syndicated Loan or the making of
the initial Negotiated Bid Loan or Competitive Bid Loan the following, each in
form and substance satisfactory to the Lenders:
(a) A duly executed counterpart of this Agreement;
(b) The Notes of the Borrower, each duly executed and delivered by the
Borrower;
(c) A duly executed certificate of the Secretary or Assistant Secretary
of the Borrower which certificate shall certify: (i) the names and true
signatures of the officers of the Borrower, authorized to sign this Agreement,
the Notes and the other documents contemplated hereby; (ii) the
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by-laws of the Borrower; and (iii) a copy of the resolutions of the Borrower's
Board of Directors, which shall be attached to such certificate and which such
certificate shall state have not been amended, modified, revoked or rescinded,
authorizing (a) the execution, delivery and performance of this Agreement and
the Notes and (b) the Borrowings contemplated hereunder;
(d) A copy of the Certificate of Incorporation of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware;
(e) A good standing certificate for the Borrower certified as of a
recent date by the Secretaries of State of Delaware and Florida;
(f) A favorable opinion of Sullivan & Cromwell, counsel to the
Borrower, substantially in the form of EXHIBIT F-1 attached hereto, and a
favorable opinion of corporate counsel to the Borrower, substantially in the
form of EXHIBIT F-2 attached hereto;
(g) A certificate signed by a duly authorized officer of the Borrower
substantially in the form of EXHIBIT G attached hereto, stating that:
(i) The representations and warranties contained in Section
4.1 hereof are true and correct on and as of the Effective Date as
though made on and as of such date;
(ii) To the best of such officer's knowledge, no event has
occurred and is continuing which constitutes a Default or an Event of
Default; and
(iii) The Existing Credit Facilities have been paid in full
and canceled as of the Effective Date;
(h) Evidence satisfactory to the Managing Agents of the termination
of the Existing Credit Facilities and repayment of any outstanding indebtedness
thereunder; and
(i) Payment to the Managing Agents and their Affiliates of any fees
agreed to be paid by the Borrower in connection with the structuring and
syndication of the Commitments.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN; REPRESENTATIONS AND
WARRANTIES. The obligation of each Lender to make any Loan shall be subject to
the further conditions precedent that on the date of such Loan the following
statements shall be true, and the acceptance by the Borrower of the proceeds of
any Loan shall be deemed to constitute a representation and warranty by the
Borrower that, as of the date of such Loan, the following statements are,
respectively, true:
(a) The representations and warranties contained in Section 4.1 (other
than, in the case of any Loan made after the Effective Date, the second sentence
of Section 4.1(e)) are correct on and as of the date thereof as though made on
and as of such date;
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(b) No event has occurred and is continuing, or would result from such
Loan, which constitutes a Default or an Event of Default; and
(c) After giving effect to the making of such Loan, the aggregate
principal amount of all Loans outstanding owing to the Lenders under this
Agreement will not exceed the aggregate amount of the Commitments at such time.
In addition to the foregoing, on any Borrowing Date with respect to any
Loan requested by the Borrower when the outstanding principal amount of the
Loans (either before or after giving effect to such Loan) exceeds seventy-five
percent (75%) of the aggregate Commitments, the Borrower shall deliver to the
Administrative Agent a certificate signed by a duly authorized officer of the
Borrower indicating the outstanding amount of all Negotiated Bid Loans,
including the currency and Relevant Rate with respect thereto, and certifying
that the statement in subsection 3.2(c) is true and correct.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
in good standing under the laws of the State of Florida.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene the (i)
Borrower's charter or by-laws or (ii) applicable law or (iii) any material
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or regulatory body or any other
Person is required for the due execution, delivery and performance by the
Borrower of this Agreement and the Notes.
(d) This Agreement is, and each of the Notes when delivered hereunder
will be, the legal, valid and binding obligation of the Borrower enforceable
against it in accordance with its respective terms except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
(e) The consolidated balance sheet of the Borrower and its Subsidiaries
as of June 30, 1996, and the related statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, copies of which
have been furnished to the Lenders, fairly present the
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<PAGE> 36
consolidated financial condition of the Borrower and its Subsidiaries as at such
date and the results of the operations of the Borrower and its Subsidiaries for
the fiscal year ended on such date, all in accordance with GAAP consistently
applied. Since June 30, 1996, there has been no material adverse change in such
condition or operations.
(f) Except as set forth on SCHEDULE 4.1, there is no pending or, to the
Borrower's knowledge, threatened action or proceeding affecting the Borrower or
any of its Subsidiaries before any court, governmental agency or arbitrator
which would reasonably be expected to have a Material Adverse Effect.
(g) The Borrower is not engaged in the business of extending credit or
in the business of purchasing or carrying Margin Stock, and the borrowings
hereunder will not be used for the purpose of purchasing or carrying Margin
Stock.
(h) No Reportable Event has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect to
any Plan, and each Plan has, during this five-year period, complied in all
material respects with the applicable provisions of ERISA and the Code. There is
no outstanding Lien under ERISA or the Code with respect to any Plan. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvency.
(i) To the Borrower's knowledge, each of the representations and
warranties set forth in paragraphs (i) through (v) of this paragraph is true and
correct with respect to each parcel of real property owned or operated by the
Borrower and its Subsidiaries (the "Properties"), except to the extent that the
facts and circumstances giving rise to any such failure to be so true and
correct would not reasonably be expected to have a Material Adverse Effect:
(i) The Properties do not contain, and have not previously
contained, in, on, or under such Properties, including, without
limitation, the soil and groundwater thereunder, any Hazardous
Materials in concentrations which violate Environmental Laws.
(ii) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is
no Hazardous Materials contamination or violation of any Environmental
Law which could interfere with the continued operation of any of the
Properties or impair the fair saleable value of any thereof.
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(iii) Neither the Borrower nor any of its Subsidiaries has
received any complaint, notice of violation, alleged violation,
investigation or advisory action or of potential liability or of
potential responsibility regarding environmental protection matters or
permit compliance with regard to the Properties, nor is the Borrower
aware that any Governmental Authority is contemplating delivery to the
Borrower or any of its Subsidiaries of any such notice.
(iv) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties, nor have
any Hazardous Materials been transferred from the Properties to any
other location.
(v) There are no governmental, administrative actions or
judicial proceedings pending or contemplated under any Environmental
Laws to which the Borrower or any of its Subsidiaries is or will be
named as a party with respect to the Properties, nor are there any
consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements,
outstanding under any Environmental Law with respect to any of the
Properties.
(j) The aggregate principal amount of Loans outstanding to the Lenders
under the Commitments (including all Competitive Bid Loans and Negotiated Bid
Loans outstanding thereunder) does not exceed the aggregate amount of the
Commitments.
ARTICLE 5
COVENANTS OF THE BORROWER
-------------------------
SECTION 5.1 AFFIRMATIVE COVENANTS. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Required Lenders shall otherwise consent in writing:
(a) TANGIBLE NET WORTH. Maintain at all times a Tangible Net Worth of
not less than $900,000,000.
(b) TOTAL DEBT TO TOTAL CAPITALIZATION. Maintain at all times a ratio,
expressed as a percentage, of Total Debt to Total Capitalization of not greater
than 50%, calculated on a consolidated basis.
(c) CORPORATE EXISTENCE. Maintain its corporate existence and good
standing in its jurisdiction of incorporation and its qualification and good
standing in all jurisdictions where failure to so qualify would have a Material
Adverse Effect.
(d) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and orders
where the failure to so comply would have a Material Adverse Effect, such
compliance to include, without limitation, paying before the same
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<PAGE> 38
become delinquent all taxes, assessments and governmental charges imposed upon
it or upon its property except to the extent otherwise permitted by Section
5.1(j).
(e) REPORTING REQUIREMENTS. Furnish to the Administrative Agent (with
sufficient copies for distribution to each Lender): (i) as soon as available and
in any event within sixty (60) days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter
and related statements of income, cash flows and retained earnings of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified by an
authorized financial officer of the Borrower; (ii) as soon as available and in
any event within one hundred twenty (120) days after the end of each fiscal year
of the Borrower, a copy of the annual report for such year for the Borrower and
its Subsidiaries, containing financial statements for such year certified in a
manner acceptable to the Managing Agents by Ernst & Young, LLP, or other
independent public accountants acceptable to the Managing Agents; (iii) promptly
after sending or filing thereof, copies of all reports which the Borrower sends
to any of its security holders, and copies of all reports and registration
statements which the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange; PROVIDED, that the
Borrower shall not be required to furnish copies of registration statements
filed on Form S-8, or exhibits to the reports and registration statements
referred to in this clause (iii); (iv) promptly after the filing or receiving
thereof, copies of all reports and notices which the Borrower or any Subsidiary
files under ERISA with the PBGC or the United States Department of Labor or
which the Borrower or any Subsidiary receives from the PBGC; PROVIDED, that the
Borrower shall not be required to furnish copies of the reports and notices
referred to in this clause (iv) until such time as the aggregate unfunded vested
liabilities under all plans maintained for employees of the Borrower and its
Subsidiaries and covered by Title IV of ERISA exceed four percent (4%) of the
Borrower's total shareholders' equity as reflected in the financial statements
most recently furnished by the Borrower to the Lenders pursuant to this Section
4.1(e); (v) promptly subsequent to the rendering thereof, notice of the
rendering against the Borrower or any of its Subsidiaries of any final judgment
or order for the payment of money in excess of Twenty-Five Million Dollars
($25,000,000) (or its equivalent in another currency), together with a
description in reasonable detail of the relevant circumstances and the action
which the Borrower proposes to take in response thereto; (vi) promptly, notice
of any Event of Default or any Default hereunder, together with a description in
reasonable detail of the relevant circumstances and the action which the
Borrower proposes to take in response thereto; and (vii) such other information
respecting the conditions or operations, financial or otherwise, of the Borrower
or any of its Subsidiaries as any Lender, through the Administrative Agent, may
from time to time reasonably request.
(f) CERTIFICATES. Furnish to the Administrative Agent (in sufficient
copies for distribution to each Lender), concurrently with the delivery of the
financial statements referred to in Subsection 5.1(e)(ii), a certificate of a
Responsible Officer (i) stating that, to the officer's knowledge, the Borrower
during such period has in all material respects observed or performed all of its
covenants and other agreements and satisfied every condition, contained in this
Agreement and in the Notes to be observed, performed or satisfied by it, and
that such officer has obtained no knowledge of any
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<PAGE> 39
Event of Default except as specified in such certificate, and (ii) showing in
reasonable detail the calculation supporting such statement in respect of
subsections 5.1(a) and (b) and subsections 5.2(b)(xiii) and (c).
(g) COVENANT TO SECURE NOTES EQUALLY. Without affecting the obligations
of the Borrower under Section 5.2(b), if the Borrower shall create, assume,
incur or suffer to exist any Lien upon any of its property or assets, whether
now owned or hereafter acquired, other than Permitted Liens (unless prior
written consent to the creation or assumption thereof shall have been obtained
from the Required Lenders pursuant to Section 8.1), it shall make or cause to be
made effective provisions whereby the Obligations shall be secured by such Lien
equally and ratably with any and all other Debt or other obligations thereby
secured, and such security shall be created and conveyed by documentation
satisfactory in scope, form and substance to the Managing Agents and shall
continue in full force and effect until the same is released by the Lenders, for
as long as the Debt or other obligations are secured thereby and in any case the
Obligations shall have the benefit, to the full extent that the holders may be
entitled thereto under applicable law, of an equitable lien on such property or
assets equally and ratably securing the Obligations.
(h) PROPERTY. Maintain all of its property in good repair, working
order and condition, reasonable wear and tear excepted, and from time to time to
make all proper repairs, renewals or replacements, betterments and improvements
thereto so that the business carried on in connection therewith may be properly
conducted at all times, and cause its Subsidiaries to do so, except where the
failure to make such repairs, renewals, replacements, betterments or
improvements would not, in the aggregate, have a Material Adverse Effect.
(i) INSURANCE. Keep, and cause each of its Subsidiaries to keep, all of
its insurable properties insured against loss or damage by theft, fire, smoke,
sprinklers, riot and explosion, such insurance to be in such form, in such
amount and against such other risks and hazards as are customarily maintained by
other Persons operating similar businesses and having similar properties in the
same general areas in which the Borrower and its Subsidiaries own property.
(j) TAXES. 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 known lawful claims which, if unpaid, might by law
become a Lien upon its property; PROVIDED, that neither the Borrower nor any of
its Subsidiaries shall be required to pay or discharge (x) any such tax,
assessment, charge or claim which is being contested in good faith and by
proper proceedings and for which adequate reserves have been provided in
accordance with GAAP or (y) any such taxes or assessments levied by foreign
governments if, in the opinion of the Board of Directors of the Borrower,
payment thereof shall no longer be advantageous to the Borrower or such
Subsidiary in the conduct of its business and the failure to so pay would not
in the aggregate have a Material Adverse Effect.
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<PAGE> 40
(k) ENVIRONMENTAL LAWS.
(i) Comply with, and ensure compliance by all tenants and
subtenants, if any, with all Environmental Laws and obtain and comply
with and maintain, and ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals,
registration or permits required by Environmental Laws, and cause each
of its Subsidiaries to do so, except to the extent that failure to do
so would not be reasonably expected to have a Material Adverse Effect;
(ii) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply with all lawful
orders and directives of all Governmental Authorities respecting
Environmental Laws, and cause each of its Subsidiaries to do so except
to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings would not
be reasonably expected to have a Material Adverse Effect; and
(iii) Defend, indemnify and hold harmless the Agents and each
Lender, and their respective employees, agents, officers and directors,
from and against any actual and direct claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of or
noncompliance with any Environmental Laws applicable to the real
property owned or operated by the Borrower or any of its Subsidiaries,
or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, court costs and
litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor; PROVIDED, that the indemnification
provided for by this paragraph shall survive the repayment of the Notes
and the termination of the Commitments for a period of five (5) years.
(l) Keep, and cause each of its Material Subsidiaries to keep, proper
books of record and account, containing complete and accurate entries of all
their respective financial and business transactions.
SECTION 5.2 NEGATIVE COVENANTS. So long as any Note shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower shall not,
without the written consent of the Required Lenders:
(a) MERGER, CONSOLIDATION AND SALE OF ASSETS. Merge or consolidate with
or sell, assign, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or permit any of its Material
Subsidiaries (or any group of its Subsidiaries which taken as a whole would
constitute a Material Subsidiary) to do so, except that any such Subsidiary may
merge into or consolidate with
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or transfer assets to the Borrower or any other such Subsidiary and the Borrower
may merge with any other Person provided in each case that, immediately
thereafter and giving effect thereto, no event shall have occurred and be
continuing which constitutes a Default or an Event of Default and, in the case
of any such merger or consolidation to which the Borrower is a party, the
Borrower is the surviving corporation.
(b) LIENS. Create, assume, incur or suffer to exist, or allow any
Material Subsidiary to create, assume, incur or suffer to exist, any Lien on any
of its property or assets or any shares of capital stock or indebtedness of any
Material Subsidiary, whether nor owned or hereafter acquired, or assigned,
except:
(i) Liens for taxes not yet due, or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP;
(ii) Liens in respect of property or assets of the Borrower or
any Material Subsidiary imposed by law, which were incurred in the
ordinary course of business, such as carriers', warehousemen's and
mechanics' liens and other similar Liens arising in the ordinary course
of business and (x) which do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operations of the business of the Borrower or any
Material Subsidiary or (y) which are being contested in good faith by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP and which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(iii) Liens in existence on the Closing Date and disclosed on
SCHEDULE 5.2 hereto;
(iv) any Lien existing prior to the time of acquisition (other
than Liens created, assumed or incurred in anticipation of acquisition)
upon any property acquired by the Borrower or any Material Subsidiary
through purchase, merger or consolidation or otherwise, if the payment
of the indebtedness secured thereby or interest thereon will not
become, by assumption or otherwise, a personal obligation of the
Borrower or a Material Subsidiary;
(v) any Lien placed upon property hereafter acquired by the
Borrower or any Material Subsidiary or placed upon any equipment, land,
buildings, or other properties purchased or constructed which secures
Debt incurred for its purchase or construction; PROVIDED, that (a) such
Lien shall cover only hereafter acquired property or property on which
construction occurs, and (b) any such Lien shall be created within six
months of the acquisition of such property; and PROVIDED, FURTHER, that
the amount of Debt secured by any such Lien shall not exceed 100% of
the lesser of the fair market value or the cost of the encumbered
property, equipment, land or building, or construction costs, as the
case may be;
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<PAGE> 42
(vi) any Lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation, which is
required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege or
license, or to enable the Borrower or a Material Subsidiary to maintain
self-insurance or to participate in any arrangements established by law
to cover any insurance risks or in connection with workmen's
compensation, unemployment insurance, old age pensions, social security
or similar matters;
(vii) judgment liens, so long as the finality of such judgment
is being contested in good faith and execution thereon is stayed and
adequate reserves have been established in accordance with GAAP;
(viii) easements or similar encumbrances, the existence of
which does not impair the use or value of the property subject
thereto for the purposes for which it is held or was acquired;
(ix) leases and landlords' Liens on fixtures and movable
property (other than computer equipment) located on premises leased in
the ordinary course of business, so long as the rent secured by said
fixtures and movable property is not in default;
(x) Liens consisting of leases (whether "true" leases or
capitalized leases) of computer equipment entered into in the ordinary
course of business after the date hereof;
(xi) Liens, pledges or deposits made in connection with
Governmental Contracts insofar as such Liens, pledges or deposits
relate to property manufactured, installed, constructed, acquired or to
be supplied by, or property furnished to, the Borrower or a Material
Subsidiary pursuant to, or to enable the performance of, such
Government Contracts, or property the manufacture, installation,
construction or acquisition of which any government or any department
or agency thereof finances or guarantees the financing of, pursuant to,
or to enable the performance of, such Government Contracts; or deposits
or Liens, made pursuant to such Government Contracts, of or upon moneys
advanced or paid pursuant to, or in accordance with the provisions of,
such Government Contracts, or of or upon any materials or supplies
acquired for the purposes of the performance of such Government
Contracts; or the assignment or pledge to any Person, to the extent
permitted by law, of the right, title and interest of the Borrower or a
Material Subsidiary in and to any Government Contract, or in and to any
payments due or to become due thereunder, to secure indebtedness
incurred and owing to such Person for funds or other property supplied,
constructed or installed for or in connection with the performance by
the Borrower or such Subsidiary of its obligations under such
Government Contract;
(xii) any mortgage or other Lien in favor of the United States
of America or any State thereof, or political subdivision of the United
States of America or any State thereof, or any department, agency or
instrumentality of the United States of America or any State
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<PAGE> 43
thereof, or any such political subdivision, to secure Debt incurred for
the purpose of financing the acquisition, construction or improvement
of all or any part of the property subject to such mortgage or other
Lien; PROVIDED, that (a) such Lien shall cover only such acquired
property or property on which construction of improvements occurs, and
(b) any such Lien shall be created within six months of the acquisition
of or construction or improvement on such property; and PROVIDED,
FURTHER, that the amount of Debt secured by any such Lien shall not
exceed 100% of the lesser of the fair market value or the cost of the
encumbered property, equipment, land or building, as the case may be;
and
(xiii) any Lien other than Permitted Liens, PROVIDED that the
sum of (x) the aggregate amount of Debt secured by all such Liens
permitted under this clause (xiii), (y) the aggregate monetary
obligations in respect of transactions permitted pursuant to the
proviso of Section 5.2(c) and (z) the aggregate face amount of all
receivables of the Borrower and its Subsidiaries at any time sold
(whether or not accounted for as a sale or as a financing under GAAP)
and currently outstanding, shall not at any time exceed twenty-five
percent (25%) of Total Capitalization.
(c) SALE AND LEASEBACK. Enter into any arrangement for a term exceeding
three (3) years with any investor or to which such investor is a party providing
for the leasing by the Borrower or any Material Subsidiary of real or personal
property which has been or is to be sold or transferred by the Borrower or any
Material Subsidiary of the Borrower to such investor or to any Person to whom
funds have been or are to be advanced by such investor on the security of such
property or rental obligations of the Borrower or any Material Subsidiary;
PROVIDED, that the Borrower or any Material Subsidiary may enter into any such
arrangement if the sum of (i) the aggregate monetary obligations in respect of
all such transactions, including, without limitation, the proposed
sale-leaseback transaction, (ii) the aggregate amount of Debt secured by any
Liens permitted by Section 5.2(b)(xiii), and (iii) the aggregate face amount of
all receivables of the Borrower or any of its Subsidiaries at any time sold
(whether or not accounted for as a sale or as a financing under GAAP) and
currently outstanding, shall not exceed twenty-five percent (25%) of Total
Capitalization.
ARTICLE 6
EVENTS OF DEFAULT
-----------------
SECTION 6.1 EVENTS OF DEFAULT. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any amount of principal of any Loan
when due; or
(b) The Borrower shall fail to pay any interest on any Loan when due
and such failure shall remain unremedied for five (5) days; or
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<PAGE> 44
(c) Any representation or warranty made or deemed made by the Borrower
herein or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when made
or deemed made; or
(d) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be performed or
observed and any such failure shall remain unremedied for thirty (30) days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(e) The Borrower or any of its Subsidiaries shall (i) fail to make any
payment on account of any Debt (excluding Debt evidenced by the Notes) or
Hedging Arrangement having an outstanding principal amount (or notional amount
in the case of a Hedging Arrangement) of $25,000,000 or more of the Borrower or
such Subsidiary (as the case may be), or any interest or premium thereon, when
due (whether at scheduled maturity, upon 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 Debt
or Hedging Arrangement, or (ii) fail to perform or observe any term, covenant,
condition on its part to be performed or observed under any agreement or
instrument relating to any such Debt (but not including Hedging Arrangements)
when required to be performed or observed, and such failure shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such failure to perform or observe is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment and other than as a consequence of the
sale, pledge or other disposition by the Borrower of Margin Stock), prior to the
stated maturity thereof; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period in
excess of sixty (60) days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any of its Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
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<PAGE> 45
(g) A final judgment or order known to the Borrower for the payment of
money in excess of $25,000,000 (or its equivalent in another currency) shall be
rendered against the Borrower or any of its Subsidiaries and not paid and either
(i) enforcement proceedings shall have been commenced upon such judgment or
order and such proceedings are not being contested in good faith or (ii) a stay
of enforcement of such judgment or order or similar relief, by reason of a
pending appeal or otherwise, shall not be in effect with respect to such
judgment or order for any period of ten (10) consecutive days; PROVIDED, that
the circumstances described in clause (i) or (ii), above, as to such a judgment
or order which is rendered by any foreign Governmental Authority and which has
not been confirmed in any way by any United States Governmental Authority shall
not give rise to any Event of Default under this subsection (g) if the Lenders
shall have been furnished (promptly after the Borrower shall have knowledge of
the commencement of any such proceedings or any such ten (10) day period and
promptly upon obtaining knowledge of any material change in such circumstances)
with a copy (certified by the Secretary or an Assistant Secretary of the
Borrower) of a resolution adopted by the Board of Directors or the Executive
Committee of the Board of Directors of the Borrower to the effect that, having
considered the advice of counsel, it has been determined to be in the best
interests of the Borrower to permit such circumstances to exist and directing
the appropriate officers of the Borrower to notify the Lenders of all material
developments relating to such judgment or order (including any significant
modification of such determination); or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Single Employer Plan,
(iii) a Reportable Event shall occur with respect to any Single Employer Plan,
or proceedings shall commence to have any Single Employer Plan terminated or to
have a trustee appointed, or a trustee shall be appointed, to administer any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Managing Agents,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title
IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Managing Agents is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist,
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could subject the Borrower or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the business,
operations, property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (f) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with
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<PAGE> 46
accrued interest thereon and any unpaid accrued fees and all other Obligations
of the Borrower accrued under this Agreement, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein to the contrary notwithstanding; and with respect to any event with
respect to the Borrower described in paragraph (f) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued fees and all other
Obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding. Except as expressly provided
above in this section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
ARTICLE 7
ADMINISTRATIVE AGENT
--------------------
Each of the Lenders, the Documentation Agent, the Managing Agents and
the Co-Agents hereby irrevocably appoints the Administrative Agent as its agent
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or Affiliate thereof
as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default or an Event of Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise by the Required Lenders in writing,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or, when expressly required hereby, all of the Lenders) or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default or an
Event of Default unless and until written notice thereof is given to the
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<PAGE> 47
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 3 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in good faith in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the affiliates of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Managing Agents and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Managing Agents, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an affiliate of any
such bank, having a combined capital and surplus of at least $500,000,000 or an
affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article
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<PAGE> 48
and Section 8.4 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Administrative
Agent. No additional managing agents or co-agents shall be appointed without the
prior approval of the Managing Agents.
Each Lender agrees (i) to reimburse the Administrative Agent and the
Documentation Agent, on demand, in the amount of its pro rata share (determined
based on the relative percentage of each Lender's Commitment to the total
Commitments last in effect hereunder prior to the incurrence of such expense) of
any reasonable expenses incurred for the benefit of the Lenders by the
Administrative Agent and the Documentation Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, which shall not have been reimbursed by the Borrower and (ii) to
indemnify and hold harmless the Administrative Agent, the Documentation Agent
and each Managing Agent and any of their respective directors, officers,
employees or agents, on demand, in the amount of such pro rata shares, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against any
of them in their capacity as the Administrative Agent, the Documentation Agent
or a Managing Agent, as applicable, or any of them in any way relating to or
arising out of this Agreement or any action taken or omitted by it or any of
them under this Agreement, to the extent the same shall not have been reimbursed
by the Borrower; provided that no Lender shall be liable to the Administrative
Agent, the Documentation Agent or any Managing Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, such Managing Agent or any of their
directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Documentation Agent, the Managing
Agents, the Co-Agents, the Syndication Agent or any other Lender and based on
such 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 Managing Agents, the
Co-Agents, the Syndication Agent or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Each of the Lenders hereby designates the Documentation Agent and the
Managing Agents as their agents and acknowledges that each shall have no duties
under this Agreement whatsoever except as explicitly set forth herein and that
each shall be entitled to all protections afforded the Administrative Agent
under this Article 7.
None of the Lenders identified herein as a "Co-Agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. The Syndication Agent shall
have no right, power, obligation, liability, responsibility or duty under the
Agreement whatsoever and shall not be deemed to be a "Lender" hereunder.
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<PAGE> 49
ARTICLE 8
MISCELLANEOUS
-------------
SECTION 8.1 WAIVERS AND AMENDMENTS. (a) No failure or delay of the
Administrative Agent, any other Agent or any Lender in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the other Agents and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) increase or extend the Commitment
or decrease the Facility Fees of any Lender without the prior written consent of
such Lender or (iii) amend or modify the provisions of Section 8.4, Section 8.7,
the provisions of this Section or the definition of "Required Lenders" or
Article 3 without the prior written consent of each Lender; PROVIDED FURTHER
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Documentation Agent or the Managing
Agents hereunder without the prior written consent of the Managing Agents, the
Documentation Agent or the Administrative Agent, as applicable. Each Lender
shall be bound by any waiver, amendment or modification authorized by this
Section.
SECTION 8.2 NOTICES. Except as expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or when deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows (or to such other address
as may be hereafter notified by the respective parties hereto and any future
holder of any Note):
(a) if to the Borrower, to it at 1025 W. NASA Boulevard, Melbourne,
Florida 32919, Attention: Treasurer (Telecopy No.: (407) 727-9284);
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(b) if to the Administrative Agent or to Chase as Managing Agent, to it
at Grand Central Tower, 140 East 45th Street, New York, New York 10017,
Attention of Archie Rigopoulis (Telecopy No. (212) 622-0002), with a copy to The
Chase Manhattan Bank; 1 Chase Manhattan Plaza, New York, New York 10081,
Attention: John Huber (Telecopy No. (212) 552-4266).
(c) if to the Documentation Agent or to SunTrust as Managing Agent, to
it at P.O. Box 4418, Center No. 126, Atlanta, Georgia 30302, Attention: David W.
Penter (Telecopy No.: (404) 588-8833);
(d) if to Bank of America as Managing Agent, to it at 1230 Peachtree
Street, 38th Floor, Atlanta, Georgia 30309, Attention: Laurens Schaad (Telecopy
No. (404) 249-6938); and
(e) if to a Lender, to it at its address (or telecopy number) set forth
on SCHEDULE 1.1 or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto;
PROVIDED THAT any notice, request or demand to or upon the Administrative Agent
pursuant to Article 2 shall not be effective until received.
SECTION 8.3 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigations made by the Lenders or on their behalf, and shall continue in
full force and effect as long as any Obligation is outstanding and unpaid and so
long as the Commitments have not been terminated.
SECTION 8.4 PAYMENT OF EXPENSES AND TAXES; INDEMNITY. (a) The Borrower
agrees (i) to pay or reimburse each of the Administrative Agent, the
Documentation Agent and the Lenders for all its reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the Notes, and any other documents prepared in connection
herewith or therewith, including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent, the Documentation Agent
and the Lenders or the costs of services allocated to in-house counsel to the
Administrative Agent, the Documentation Agent and the Lenders, and (ii) to pay,
indemnify, and hold each of the Administrative Agent, the Documentation Agent
and the Lenders harmless from any and all recording and filing fees and any and
all actual and direct liabilities with respect to, or resulting from any delay
in paying stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Notes, and any such other documents.
(b) The Borrower agrees to indemnify each Managing Agent, the
Administrative Agent, the Documentation Agent, the Syndication Agent, each
Lender and each of their respective directors,
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<PAGE> 51
officers, employees and agents (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of or in connection with (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, (ii) the
performance by the parties hereto of their respective obligations hereunder or
the consummation of the transactions contemplated hereby, (iii) the use of the
proceeds of the Loans or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, and including any legal action by the Borrower against an Indemnitee
(unless the Borrower prevails); provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct, breach of this Agreement or violation of
applicable law of such Indemnitee or (y) are the result of claims of Lenders
against other Lenders not attributable to the Borrower's actions and for which
the Borrower otherwise has no liability.
(c) The provisions of this Section 8.4 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Managing Agents, the Administrative Agent, the Documentation Agent, the
Syndication Agent or any Lender. All amounts due under this Section 8.4 shall be
payable on written demand therefor.
SECTION 8.5 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
affiliate of a Lender, the Borrower and the Administrative Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed; provided that no consent of the Borrower shall
be required if an Event of Default has occurred and is continuing), (ii) each
such assignment shall be of a constant percentage of all the assigning Lender's
rights and obligations under the Commitments and Loans, (iii) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 and the
amount of the Commitment of such Lender remaining after such assignment shall
not be less than $5,000,000 or shall be zero, and (iv) parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance and a processing and recordation fee of $3,000. Upon acceptance
and recording pursuant to paragraph (c) of this Section 8.5, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender
- 47 -
<PAGE> 52
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.17, 2.18, 2.19, 2.23 and 8.4, as well as to any Facility
Fees accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this Agreement
may retain any Competitive Bid Loans or Negotiated Bid Loans made by it
outstanding at such time, and in such case shall retain its rights hereunder in
respect of any Loans so retained until such Loans have been repaid in full in
accordance with this Agreement. In connection with any assignment pursuant
hereto, the transferor Lender, the Administrative Agent and the Borrower shall
make appropriate arrangements to deliver new Notes from the Borrower to the
transferor Lender and the transferee to evidence their relative Commitments.
(b) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Loans thereunder, in each
case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning 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 other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant hereto and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Documentation Agent, the Managing Agents, 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; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans
- 48 -
<PAGE> 53
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive in the absence of
manifest error and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the processing and recordation
fee referred to in paragraph (a) above and, if required, the written consent of
the Borrower and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders and the Borrower.
(e) Each Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loans
owing to such Lender, any Note held by such Lender, the Commitment of such
Lender or any other interest of such Lender hereunder. In the event of any such
sale by any Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the Borrower shall remain unchanged, the
Lender shall remain solely responsible for the performance thereof, the Lender
shall remain the holder of any such Note for all purposes under this Agreement,
and the Borrower shall continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations under this Agreement. The
Borrower agrees that if amounts outstanding under this Agreement or any Note are
due or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement or any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.17, 2.18, 2.19, 2.23 and 8.4 with respect
to its participation in the Commitment or Commitments and the Loans outstanding
from time to time; PROVIDED, that no Participant shall be entitled to receive
any greater amount pursuant to such sections than the Lender which sold it the
participation would have been entitled to receive in respect of the amount of
the participation transferred by such Lender to such participant had no such
transfer occurred.
(f) The Borrower authorizes each Lender to disclose to any Participant
or prospective Participant or assignee or prospective assignee any and all
financial and other information in such Lender's possession concerning the
Borrower, its Subsidiaries and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower, its Subsidiaries and its
Affiliates prior to becoming a party to this Agreement.
- 49 -
<PAGE> 54
(g) If, pursuant to this section, any interest in this Agreement or a
Note is transferred to any assignee or Participant which is organized under the
laws of any jurisdiction other than the United States or any state thereof, the
Lender making such assignment or selling such participation shall cause such
assignee or Participant, as the case may be, concurrently with the effectiveness
of such transfer, (i) to represent to such Lender (for the benefit of such
Lender and the Borrower) that under applicable law and treaties no taxes will be
required to be withheld by the Borrower (or such Lender in the case of a
Participant) with respect to any payments to be made to such assignee
Participant in respect of the Loans, (ii) to furnish to such Lender either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such assignee or Participant claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and (iii)
to agree (for the benefit of such Lender and the Borrower) to provide such
Lender (in the case of a Participant) or the Borrower (in the case of an
assignee) a new Form 4224 or Form 1001 upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments, duly executed and completed
by such Participant or assignee, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption (with the express understanding that an assigning Lender shall have no
responsibility for the compliance of the assignee with any such agreement
following the effective date of the assignment).
(h) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
SECTION 8.6 RIGHT OF SET-OFF. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the declaration of any Loan to be
due and payable pursuant to the provisions of Section 6.1, each Lender is hereby
authorized at any time and from time to time, without notice to the Borrower
(any such notice being expressly waived by the Borrower) and to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final but not including custodial or
fiduciary deposits) at any time held and other indebtedness at any time owing by
any Lender or any affiliate of any Lender to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Notes held by such Lender,
irrespective of whether or not the Administrative Agent or any Lender shall have
made any demand under this Agreement or such Notes and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Lenders under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Lenders or the Administrative Agent may have.
SECTION 8.7 BINDING EFFECT. This Agreement shall become effective as of
the date first above written and when the conditions set forth in Section 3.1
shall have been satisfied, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Lenders and their respective successors and
assigns, except that the Borrower shall not have the right to assign or transfer
any of
- 50 -
<PAGE> 55
its rights or obligations hereunder or any interest herein without the
prior written consent of each of the Lenders.
SECTION 8.8 APPLICABLE LAW. THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 8.9 INTEREST LIMITATION. Notwithstanding anything herein to the
contrary, if at any time the applicable interest rate, together with all fees
and charges which are treated as interest under applicable law (collectively the
"Charges"), as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged, received, taken or
reserved by any Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable on the
Loans held by such Lender, together with all Charges payable to such Lender,
shall be limited to the Maximum Rate.
SECTION 8.10 HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
SECTION 8.11 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.
SECTION 8.12 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8.13 INTEGRATION. This Agreement represents the entire
agreement of the Borrower, the Administrative Agent, the Documentation Agent,
the Managing Agents, the Co-Agents and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Borrower, the Administrative Agent, the Documentation Agent,
the Managing Agents, the Co-Agents or the Lenders relative to the subject matter
hereof not expressly set forth or referred to herein or in the Notes.
SECTION 8.14 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-
- 51 -
<PAGE> 56
exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 8.2 or at such other address of which the
Administrative Agent and the Lenders shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this section any special, exemplary, punitive or consequential damages.
SECTION 8.15 WAIVER OF JURY TRIAL. Each of the Borrower, the
Administrative Agent, the Managing Agents and the Lenders hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation (whether sounding in tort, contract or
otherwise) directly or indirectly arising out of, under or in connection with
this Agreement. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement, as applicable, by, among other things, the
mutual waivers and certifications in this Section 8.15.
SECTION 8.16 TELEPHONE NOTICE. To the extent that telephonic notice is
provided for herein, the Administrative Agent and each Lender are authorized to
rely on instructions received by telephone from persons that the Administrative
Agent and such Lender believes in good faith to be authorized to give such
instructions hereunder. Neither the Administrative Agent nor any Lender shall
incur any liability to the Borrower or any other Person as a result of any act
or omission by the Administrative Agent or any Lender in accordance with such
instructions; provided, that the foregoing shall not apply in the event of the
Administrative Agent's or such Lender's gross negligence or willful misconduct.
[SIGNATURES SET FORTH ON NEXT PAGE]
- 52 -
<PAGE> 57
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.
BORROWER:
HARRIS CORPORATION
By: /s/ D. S. Wasserman
--------------------------------------
David S. Wasserman
Vice President - Treasurer
AGENTS:
THE CHASE MANHATTAN BANK, as
Administrative Agent and Managing Agent
By: /s/ John J. Huber
--------------------------------------
John J. Huber III
Managing Director
SUNTRUST BANK, ATLANTA, as Documentation
Agent and Managing Agent
By: /s/ David W. Penter
--------------------------------------
David W. Penter
Group Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Managing
Agent
By: /s/ Laurens F. Schaad, Jr.
--------------------------------------
Laurens F. Schaad, Jr.
Vice President
B.A. SECURITIES, INC., as Syndication Agent
By: /s/ Robert Karen
--------------------------------------
Robert Karen
Vice President
- 53 -
<PAGE> 58
CO-AGENTS:
ABN AMRO BANK N.V., ATLANTA AGENCY
as Co-Agent
By: /s/ Steven J. HIPSMAN
--------------------------------------
Steven Hipsman
Vice President
By: /s/ Larry K. Kelley
--------------------------------------
Larry Kelley
Group Vice President
WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION, as Co-Agent
By: /s/ Tammy Hughes
---------------------------------------
Tammy Hughes
Title:
COMMITMENT: LENDERS:
$31,250,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Laurens F. Schaad, Jr.
--------------------------------------
Laurens F. Schaad, Jr.
Vice President
$31,250,000 THE CHASE MANHATTAN BANK
By: /s/ John J. Huber
---------------------------------------
John J. Huber III
Managing Director
- 54 -
<PAGE> 59
COMMITMENT: LENDERS:
$31,250,000 SUNTRUST BANK, ATLANTA
By: /s/ David W. Penter
---------------------------------------
David W. Penter
Group Vice President
By: /s/ Thomas R. Banks
---------------------------------------
Thomas R. Banks
Banking Officer
$31,250,000 ABN AMRO BANK N.V., ATLANTA
AGENCY
By: /s/ Steven J. Hipsman
---------------------------------------
Steven Hipsman
Vice President
By: /s/ Larry K. Kelley
---------------------------------------
Larry Kelley
Group Vice President
$31,250,000 WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By: /s/ Tammy Hughes
--------------------------------------
Tammy Hughes
Title:
$18,750,000 MELLON BANK, N.A.
By: /s/ Clifford A. Mull
--------------------------------------
Clifford A. Mull
Assistant Vice President
- 55 -
<PAGE> 60
COMMITMENT: LENDERS:
$18,750,000 NATIONAL CITY BANK
By: /s/ Diego Tobon
-------------------------------------
Diego Tobon
Vice President
$18,750,000 ROYAL BANK OF CANADA
By: /s/ Michael Korine
-------------------------------------
Michael Korine
Senior Manager
$12,500,000 AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By: /s/ Kyle Loughlin
-------------------------------------
Kyle Loughlin
Vice President
$12,500,000 BANCA COMMERCIALE ITALIANA -
NEW YORK BRANCH
By: /s/ Charles Dougherty
-------------------------------------
C. Dougherty
Vice President
By: /s/ B. Carlson
-------------------------------------
B. Carlson
Assistant Vice President
$12,500,000 BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH
By: /s/ Giulio Giovine/Giuliano Violetta
------------------------------------
Giulio Giovine/Giuliano Violetta
Vice President/First Vice President
- 56 -
<PAGE> 61
COMMITMENT: LENDERS:
$12,500,000 BANK OF MONTREAL
By: /s/ Kanu Modi
-------------------------------------
Kanu Modi
Director
$12,500,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ J. Bruce Meredith
-------------------------------------
J. Bruce Meredith
Senior Vice President & Manager
$12,500,000 BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ John L. Stacy
-------------------------------------
John L. Stacy
Vice President
$12,500,000 CIBC INC.
By: /s/ Roger Colden
-------------------------------------
Roger Colden
Director
$12,500,000 CITIBANK, N.A.
By: /s/ David L. Harris
-------------------------------------
David L. Harris
Vice President
- 57 -
<PAGE> 62
COMMITMENT: LENDERS:
$12,500,000 COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By: /s/ Andreas Bremer
-----------------------------------
Andreas Bremer
Senior Vice President & Manager
By: /s/ Mary Smith
-----------------------------------
Mary Smith
Assistant Vice President
$12,500,000 CORESTATES BANK, N.A.
By: /s/ Laura J. Zavacki
-----------------------------------
Laura J. Zavacki
Commercial Officer
$12,500,000 THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Toshiaki Kurihara
-----------------------------------
Toshiaki Kurihara
Joint General Manager
$12,500,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Brett C. Neubert
-----------------------------------
Brett C. Neubert
Authorized Agent
$12,500,000 FIRST UNION NATIONAL BANK
OF FLORIDA, INC.
By: /s/ Michael J. Carlin
-----------------------------------
Michael J. Carlin
Senior Vice President
- 58 -
<PAGE> 63
COMMITMENT: LENDERS:
$12,500,000 FLEET NATIONAL BANK
By: /s/ Frank Benesh
----------------------------------
Frank Benesh
Vice President
$12,500,000 THE FUJI BANK LIMITED,
NEW YORK BRANCH
By: /s/ Masanobu Kobayashi
----------------------------------
Masanobu Kobayashi
Vice President & Manager
$12,500,000 GULF INTERNATIONAL BANK
B.S.C.
By: /s/ Abdel-Fattah Tahoun
---------------------------------
Abdel-Fattah Tahoun
Senior Vice President
By: /s/ Haytham F. Khalil
---------------------------------
Haytham F. Khalil
Assistant Vice President
$12,500,000 MARINE MIDLAND BANK
By: /s/ William M. Holland
---------------------------------
William M. Holland
Vice President
$12,500,000 THE SAKURA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Hiroyasu Imanishi
---------------------------------
Hiroyasu Imanishi
Vice President & Senior Manager
- 59 -
<PAGE> 64
COMMITMENT: LENDERS:
$12,500,000 ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By: /s/ Robert Wurster/William De Aneglo
---------------------------------------
Robert Wurster/William De Angelo
First Vice President/First Vice
President
$12,500,000 THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ P. J. Pawlak
--------------------------------------
P. J. Pawlak
Vice President & Senior Manager
$12,500,000 THE SUMITOMO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Masayuki Fukushima
---------------------------------------
Masayuki Fukushima
Joint General Manager
$12,500,000 THE TOKAI BANK LIMITED,
ATLANTA AGENCY
By: /s/ Eiichi Fujihira
--------------------------------------
Eiichi Fujihira
General Manager
$12,500,000 THE YASUDA TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By: /s/ Makoto Tagawa
--------------------------------------
Makoto Tagawa
Deputy General Manager
- 60 -
<PAGE> 1
<TABLE>
EXHIBIT 11 - COMPUTATION OF NET INCOME PER SHARE
----------
<CAPTION>
Quarter Ended Two Quarters Ended
---------------------------- -------------------------
December 31, December 31, December 31, December 31,
1996 1995 1996 1995
----------- ----------- ----------- -----------
(In millions except per share amounts)
<S> <C> <C> <C> <C>
Primary:
Average shares outstanding 39.0 39.2 39.0 39.1
===== ===== ===== =====
Net income $ 45.5 $ 40.4 $ 83.6 $ 73.9
====== ====== ====== ======
Net income per share - primary $ 1.17 $ 1.03 $ 2.15 $ 1.89
====== ====== ====== ======
Fully diluted:
Total primary average shares
outstanding 39.0 39.2 39.0 39.1
Dilutive stock options and employee
stock purchase plan shares - based
on treasury stock method using the
greater of quarter-end market price
or average market price .1 .1 .1 .1
----- ----- ----- -----
Average fully diluted shares
outstanding 39.1 39.3 39.1 39.2
===== ===== ===== =====
Net income per share - fully diluted $1.16 $1.03 $2.14 $1.89
===== ===== ===== =====
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 61,400
<SECURITIES> 117,200
<RECEIVABLES> 756,100
<ALLOWANCES> 32,800
<INVENTORY> 606,800
<CURRENT-ASSETS> 2,081,500
<PP&E> 2,097,700
<DEPRECIATION> 1,270,400
<TOTAL-ASSETS> 3,512,600
<CURRENT-LIABILITIES> 1,270,700
<BONDS> 689,000
<COMMON> 39,000
0
0
<OTHER-SE> 1,443,300
<TOTAL-LIABILITY-AND-EQUITY> 3,512,600
<SALES> 1,829,300
<TOTAL-REVENUES> 1,847,500
<CGS> 1,220,000
<TOTAL-COSTS> 469,900
<OTHER-EXPENSES> (900)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 30,800
<INCOME-PRETAX> 127,700
<INCOME-TAX> 44,100
<INCOME-CONTINUING> 83,600
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 83,600
<EPS-PRIMARY> 2.15
<EPS-DILUTED> 2.14
</TABLE>
