<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): December 28, 1998
DEXTER CORPORATION
(Exact name of registrant as specified in its charter)
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CONNECTICUT 1-5542 06-0321410
(State or other jurisdiction of (Commission file number) (I.R.S. Employer
incorporation or organization) Identification No.)
ONE ELM STREET, WINDSOR LOCKS, CONNECTICUT 06096
(Address of principal executive offices) (Zip code)
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Registrant's telephone number, including area code: (860) 292-7675
N/A
(Former name, former address and former fiscal year, if changed since last
report.)
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ITEM 2 - ACQUISITION OF ASSETS
On July 7, 1998, Dexter Corporation ("Dexter") announced its intention to
acquire the remaining 48% equity in Life Technologies, Inc. ("LTI") that it did
not currently own. Dexter made a proposal to the LTI Board of Directors to
acquire the approximately 11.3 million shares of LTI common stock it did not own
at a price of $37 per share. The offer was to be financed through Dexter's
available cash and a committed credit facility arranged by First Chicago Capital
Markets, Inc. The offer was subject to the approval of LTI's Board of Directors.
On October 27, 1998, a special committee of independent directors of the LTI
Board that had been considering Dexter's proposal advised Dexter that it would
not recommend approval of its offer.
On November 2, 1998, Dexter commenced a tender offer, for $37 per share in cash,
for all outstanding shares of common stock of LTI that it did not currently own.
Consummation of the tender offer was conditioned upon Dexter receiving
sufficient shares to own at least 80 percent of all outstanding LTI shares on a
fully diluted basis. The offer was scheduled to expire on December 1, 1998. As
of December 1, 1998, approximately 2.3 million shares of LTI common stock had
been tendered and not withdrawn. On December 2, 1998, Dexter extended the tender
offer until December 4, 1998 with all other terms of the offer remaining the
same.
On December 7, 1998, Dexter revised its offer to acquire all the shares of LTI
that it did not own to increase the offer price to $39.125 per share in cash,
eliminate the minimum share condition to the original tender offer, and extend
the expiration of the tender offer to December 22, 1998.
On December 22, 1998, Dexter completed its tender offer. Approximately 5.5
million shares of LTI common stock had been tendered and not withdrawn,
representing approximately 22% of all issued and outstanding LTI shares. The
total cost of the 5.5 million shares tendered was approximately $216 million
which was financed through a $300 million credit agreement among Dexter
Corporation, The First National Bank of Chicago, Bank of America National Trust
and Savings Association, Fleet National Bank, and the Lenders named therein,
dated December 15, 1998. As a result of the acquisition of these shares, Dexter
owns an aggregate of approximately 17.8 million shares or approximately 71% of
the total number of issued and outstanding shares.
2
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ITEM 7 - FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired
The following audited financial statements will be filed on or before March 15,
1999:
Consolidated Statement of Financial Position at December 31, 1997
Consolidated Statement of Income for the twelve months ended December 31,
1997
Consolidated Statement of Cash Flows for the twelve months ended December
31, 1997
The following unaudited interim financial statements will be filed on or before
March 15, 1999:
Consolidated Statement of Financial Position at September 30, 1998
Consolidated Statement of Income for the nine months ended September 30,
1998
Consolidated Statement of Cash Flows for the nine months ended September 30,
1998
(b) Pro Forma Financial Information
The following pro forma consolidated financial statements will be filed on or
before March 15, 1999:
Pro Forma Consolidated Statement of Financial Position at September 30, 1998
Pro Forma Consolidated Statement of Income for the twelve months ended
December 31, 1997 and for the nine months ended September 30, 1998
3
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ITEM 7 - FINANCIAL STATEMENTS AND EXHIBITS (CONTINUED)
(c) Exhibits
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Exhibit No. Description
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Exhibit 4E Five Year, $300,000,000
Credit Agreement among Dexter Corporation, The
First National Bank of Chicago, Bank of America
National Trust and Savings Association, Fleet
National Bank, and the Lenders named therein,
dated December 15, 1998
Exhibit 4F 364 Day, $300,000,000
Credit Agreement among Dexter Corporation, The
First National Bank of Chicago, Bank of America
National Trust and Savings Association, Fleet
National Bank, and the Lenders named therein,
dated December 15, 1998
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SIGNATURES
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.
DEXTER CORPORATION
(Registrant)
Date January 12, 1999 /s/ Kathleen Burdett
------------------- ---------------------------------
Kathleen Burdett
Vice President and
Chief Financial Officer
(Principal Financial Officer)
Date January 12, 1999 /s/ Glenn E. Tynan
------------------- ---------------------------------
Glenn E. Tynan
Controller
(Principal Accounting Officer)
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INDEX TO EXHIBITS
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Exhibit No. Description
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Exhibit 4E Five Year, $300,000,000
Credit Agreement among Dexter Corporation, The
First National Bank of Chicago, Bank of America
National Trust and Savings Association, Fleet
National Bank, and the Lenders named therein,
dated December 15, 1998
Exhibit 4F 364 Day, $300,000,000
Credit Agreement among Dexter Corporation, The
First National Bank of Chicago, Bank of America
National Trust and Savings Association, Fleet
National Bank, and the Lenders named therein,
dated December 15, 1998
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FIVE YEAR Exhibit 4E
$300,000,000
CREDIT AGREEMENT
AMONG
DEXTER CORPORATION
as Borrower,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent
and
THE LENDERS NAMED HEREIN
DATED AS OF
December 15, 1998
ARRANGED BY
FIRST CHICAGO CAPITAL MARKETS, INC.
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS..............................................................................................1
ARTICLE II
THE CREDITS.............................................................................................15
2.1. Advances.......................................................................................15
2.2. Ratable Loans..................................................................................16
2.3. Types of Advances..............................................................................16
2.4. Facility and Utilization Fees; Reductions in Aggregate Commitment..............................16
2.5. Minimum Amount of Each Advance.................................................................16
2.6. Optional Principal Payments....................................................................16
[Intentionally omitted.........................................................................17
2.8. Method of Selecting Types and Interest Periods for New Advances................................17
2.9. Conversion and Continuation of Outstanding Advances............................................17
2.10. Changes in Interest Rate, etc..................................................................18
2.11. Rates Applicable After Default.................................................................18
2.12. Method of Payment..............................................................................18
2.13. Noteless Agreement; Evidence of Indebtedness...................................................19
2.14. Telephonic Notices.............................................................................19
2.15. Interest Payment Dates; Interest and Fee Basis.................................................19
2.16. Notification of Advances, Interest Rates, Prepayments, Commitment
Reductions and Issuance Requests...............................................................20
2.17. Lending Installations..........................................................................20
2.18. Non-Receipt of Funds by the Agent..............................................................20
2.19. Facility Letters of Credit.....................................................................20
2.20. Extension of Facility Termination Date.........................................................24
ARTICLE III
YIELD PROTECTION; TAXES.................................................................................25
3.1. Yield Protection...............................................................................25
3.2. Changes in Capital Adequacy Regulations........................................................26
3.3. Availability of Types of Advances..............................................................26
3.4. Funding Indemnification........................................................................27
3.5. Taxes..........................................................................................27
3.6. Lender Statements; Survival of Indemnity.......................................................28
3.7. Substitution of Lenders........................................................................28
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ARTICLE IV
CONDITIONS PRECEDENT....................................................................................29
4.1. Initial Loans and Facility Letters of Credit...................................................29
4.2. Each Future Advance and Facility Letter of Credit..............................................33
ARTICLE V
REPRESENTATIONS AND WARRANTIES..........................................................................34
5.1. Existence and Standing.........................................................................34
5.2. Authorization and Validity.....................................................................34
5.3. No Conflict; Government Consent................................................................34
5.4. Financial Statements...........................................................................35
5.5. Material Adverse Change........................................................................35
5.6. Taxes..........................................................................................35
5.7. Litigation and Contingent Obligations..........................................................35
5.8. Subsidiaries...................................................................................36
5.9. ERISA..........................................................................................36
5.10. Defaults.......................................................................................36
5.11. Regulation U...................................................................................36
5.12. Material Agreements............................................................................36
5.13. Compliance With Laws...........................................................................36
5.14. Ownership of Properties........................................................................36
5.15. Plan Assets; Prohibited Transactions...........................................................37
5.16. Environmental Matters..........................................................................37
5.17. Investment Company Act.........................................................................37
5.18. Public Utility Holding Company Act.............................................................37
5.19. Acquisition Documents..........................................................................37
5.20. Year 2000......................................................................................37
5.21. Disclosure.....................................................................................38
ARTICLE VI
COVENANTS...............................................................................................38
6.1. Financial Reporting............................................................................38
6.2. Use of Proceeds................................................................................39
6.3. Notice of Default..............................................................................40
6.4. Conduct of Business............................................................................40
6.5. Taxes..........................................................................................40
6.6. Insurance......................................................................................40
6.7. Compliance with Laws...........................................................................40
6.8. Maintenance of Properties......................................................................40
6.9. Inspection.....................................................................................41
6.10. Capital Stock and Dividends....................................................................41
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6.11. Indebtedness...................................................................................41
6.12. Merger.........................................................................................41
6.13. Sale of Assets.................................................................................42
6.14. Investments and Purchases......................................................................42
6.15. Contingent Obligations.........................................................................42
6.16. Liens..........................................................................................43
6.17. Year 2000......................................................................................44
6.18. Affiliates.....................................................................................44
6.19. Mandatory Prepayments..........................................................................45
6.20. Environmental Matters..........................................................................45
6.21. Change in Corporate Structure; Fiscal Year.....................................................45
6.22. Inconsistent Agreements........................................................................45
6.23. Financial Covenants............................................................................45
6.24. ERISA..........................................................................................46
6.25. Completion of Merger...........................................................................46
6.26. Additional Guarantors; Designation of Material Domestic Subsidiaries...........................47
ARTICLE VII
DEFAULTS................................................................................................47
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES..........................................................49
8.1. Acceleration...................................................................................49
8.2. Amendments.....................................................................................50
8.3. Preservation of Rights.........................................................................51
ARTICLE IX
GENERAL PROVISIONS......................................................................................51
9.1. Survival of Representations....................................................................51
9.2. Governmental Regulation........................................................................51
9.3. Headings.......................................................................................51
9.4. Entire Agreement...............................................................................51
9.5. Numbers of Documents...........................................................................52
9.6. Several Obligations; Benefits of this Agreement................................................52
9.7. Expenses; Indemnification......................................................................52
9.8. Accounting.....................................................................................52
9.9. Severability of Provisions.....................................................................52
9.10. Nonliability of Lenders........................................................................53
9.11. Confidentiality................................................................................53
9.12. Nonreliance....................................................................................53
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ARTICLE X
THE AGENT...............................................................................................54
10.1. Appointment; Nature of Relationship.............................................................54
10.2. Powers..........................................................................................54
10.3. General Immunity................................................................................54
10.4. No Responsibility for Loans, Recitals, etc......................................................54
10.5. Action on Instructions of Lenders...............................................................55
10.6. Employment of Agents and Counsel................................................................55
10.7. Reliance on Documents; Counsel..................................................................55
10.8. Agent's Reimbursement and Indemnification.......................................................55
10.9. Notice of Default...............................................................................56
10.10. Rights as a Lender..............................................................................56
10.11. Lender Credit Decision..........................................................................56
10.12. Successor Agent.................................................................................56
10.13. Agent's Fee.....................................................................................57
10.14. Delegation to Affiliates........................................................................57
10.15. Documentation Agent; Syndication Agent..........................................................57
ARTICLE XI
SETOFF; RATABLE PAYMENTS................................................................................57
11.1. Setoff..........................................................................................57
11.2. Ratable Payments................................................................................58
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.......................................................58
12.1. Successors and Assigns..........................................................................58
12.2. Participations..................................................................................58
12.3. Assignments.....................................................................................59
12.4. Dissemination of Information....................................................................60
12.5. Tax Treatment...................................................................................60
ARTICLE XIII
NOTICES.................................................................................................61
13.1. Notices.........................................................................................61
13.2. Change of Address...............................................................................61
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ARTICLE XIV
COUNTERPARTS............................................................................................61
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL..............................................................................................61
15.1. CHOICE OF LAW..................................................................................61
15.2. CONSENT TO JURISDICTION........................................................................62
15.3. WAIVER OF JURY TRIAL...........................................................................62
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EXHIBITS
Exhibit A (Article 1) Note
Exhibit B (Section 6.1(c)) Compliance Certificate
Exhibit C (Section 12.3.1) Assignment Agreement
Exhibit D (Article I) Subsidiary Guaranty
SCHEDULES
Schedule 5.4 - Borrower Consolidated Pro Forma
Schedule 5.8 - Subsidiaries
Schedule 5.14 - Ownership of Property
Schedule 6.11 - Indebtedness
Schedule 6.14 - Investments
Schedule 6.16 - Liens
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FIVE YEAR CREDIT AGREEMENT
This Credit Agreement, dated as of December 15, 1998, is among DEXTER
CORPORATION, a Connecticut corporation, the Lenders and THE FIRST NATIONAL BANK
OF CHICAGO, individually and as Agent.
R E C I T A L S:
A. The Borrower has requested the Lenders to make financial
accommodations to it in the aggregate principal amount of $300,000,000, the
proceeds of which the Borrower will use (i) in part to finance the cash
consideration to be used to purchase common shares of LTI pursuant to the Tender
Offer and in connection with the Merger and (ii) for general corporate purposes;
and
B. The Lenders are willing to extend such financial accommodations on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means the acquisition by the Merger Sub of common shares
of LTI pursuant to the Tender Offer and the subsequent Merger.
"Acquisition Documents" means the Offer to Purchase, the Merger
Agreement, the related certificate of ownership and merger filed with the
Delaware Secretary of State to effectuate such merger and the other documents,
certificates and agreements delivered in connection with the Acquisition.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
the Borrower of the same Type and, in the case of Eurodollar Advances, for the
same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause
<PAGE> 9
the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent appointed pursuant to
Article X.
"Aggregate Available Commitment" means, at any time, (a) the Aggregate
Commitment at such time less (b) the outstanding Facility Letter of Credit
Obligations at such time.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced or increased from time to time pursuant to the terms
hereof. The initial Aggregate Commitment is $300,000,000.
"Agreement" means this Credit Agreement, as it may be amended, modified
or restated and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the financial statements referred to in Section 5.4;
provided, however, that for purposes of all computations required to be made
with respect to compliance by the Borrower with Section 6.23, such term shall
mean generally accepted accounting principles as in effect on the date hereof,
applied in a manner consistent with those used in preparing the financial
statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Corporate Base Rate for such day, and (b) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance which bears interest at
the Alternate Base Rate.
"Applicable Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing on the Aggregate Commitment
(without regard to usage) at such time pursuant to Section 2.4 as set forth in
the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time or Facility Letters of Credit at any time, the percentage rate per annum
which is applicable at such time with respect to Advances of such Type or
Facility Letters of Credit, as applicable, as set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means, at any time, the percentage
rate per annum at which utilization fees are accruing pursuant to Section 2.4 at
such time as set forth in the Pricing Schedule.
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the president, chief financial
officer, treasurer or any vice president of the Borrower, acting singly.
"Bankruptcy Code" means Title 11, United States Code, sections 1 et
seq., as the same may be amended from time to time, and any successor thereto or
replacement therefor which may be hereafter enacted.
"Borrower" means Dexter Corporation, a Connecticut corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made or a Facility
Letter of Credit is issued hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (b)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (a) short-term obligations of, or
fully guaranteed by, the United States of America maturing not more than six
months after the date of acquisition thereof, (b) commercial paper maturing not
more than six months after the date of acquisition thereof rated A-1 or better
by S&P or P-1 or better by Moody's, (c) demand deposit accounts maintained in
the ordinary course of business, and (d) certificates of deposit maturing not
more than six months after the date of acquisition thereof issued by and time
deposits maturing not more than six months after the date of acquisition thereof
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $500,000,000.
"Change" is defined in Section 3.2.
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"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 25% or more of the outstanding shares of voting stock
of the Borrower, or (b) during any period of 25 consecutive calendar months,
commencing on the date of this Agreement, the ceasing of those individuals (the
"Continuing Directors") who (i) were directors of the Borrower on the first day
of each such period or (ii) subsequently became directors of the Borrower and
whose initial election or initial nomination for election subsequent to that
date was approved by a majority of the Continuing Directors then on the board of
directors of the Borrower, to constitute a majority of the board of directors of
the Borrower.
"Closing Transactions" is defined in Section 4.1(d).
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans and participate in Facility Letters of Credit not exceeding the
amount set forth opposite its signature below or as set forth in any Notice of
Assignment relating to any assignment that has become effective pursuant to
Section 12.3.2, as such amount may be modified from time to time pursuant to the
terms hereof.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted in determining Consolidated Net Income, (i) interest expense, (ii)
expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
all other non-cash charges (including up to $150,000,000 of non-cash in-process
research and development charges incurred in connection with the Acquisition),
(vi) legal, accounting, underwriting, investment banking and other fees and
expenses incurred in connection with the Transaction Documents and (vii)
extraordinary losses incurred other than in the ordinary course of business,
minus, to the extent included in determining Consolidated Net Income,
extraordinary gains realized other than in the ordinary course of business, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time
in accordance with Agreement Accounting Principles.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period in accordance with Agreement Accounting
Principles.
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"Consolidated Total Assets" means, at any time, the total amount of
assets at such time (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Borrower and its
Subsidiaries on a consolidated basis, as determined in accordance with Agreement
Accounting Principles.
"Consolidated Net Worth" means at any time the consolidated common
shareholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time in accordance with Agreement Accounting
Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes. The Corporate Base Rate is a
reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer. First Chicago may make commercial
loans or other loans at rates of interest at, above or below the Corporate Base
Rate.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Environmental Permit" means any material permit, certificate, license,
approval and other authorization prescribed by Environmental Laws and required
for the operation of any material business of the Borrower and its Subsidiaries.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at the
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which First Chicago offers to place deposits in U.S. dollars with first-class
banks in the London interbank market at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period, in the
approximate amount of First Chicago's relevant Eurodollar Loan and having a
maturity approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at the applicable
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Request" is defined in Section 2.20.
"Facility Letter of Credit" means a Letter of Credit issued pursuant to
Section 2.19.
"Facility Letter of Credit Obligations" means as at the time of
determination thereof, the sum of (a) the Reimbursement Obligations then
outstanding and (b) the aggregate then undrawn face amount of the then
outstanding Facility Letters of Credit.
"Facility Letter of Credit Sublimit" means an aggregate amount of
$25,000,000.
"Facility Termination Date" means December 31, 2003 or any later date
as may be specified as the Facility Termination Date in accordance with Section
2.20 or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal
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Reserve System arranged by Federal funds brokers on such day, as published for
such day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
at approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by the Agent in its sole discretion.
"Financial Statements" is defined in Section 5.4.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fiscal Quarter" means one of the four three-month accounting periods
comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending December
31 of each year.
"Governmental Authority" means any government (foreign or domestic) or
any state or other political subdivision thereof or any governmental body,
agency, authority, department or commission (including without limitation any
taxing authority or political subdivision) or any instrumentality or officer
thereof (including without limitation any court or tribunal) exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any corporation, partnership or other entity
directly or indirectly owned or controlled by or subject to the control of any
of the foregoing.
"Guarantors" means each of the Subsidiaries of Borrower party to the
Subsidiary Guaranty, and their successors and assigns. Initially the Guarantors
shall be Dexter Acquisition Delaware, Inc., Dexter Hysol Aerospace, Inc., and
Dexter Magnetic Technologies, Inc. (formerly Permag Corp.).
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect; or (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens on property now or
hereafter owned or acquired by such Person, (iv) obligations which are evidenced
by notes, acceptances, or
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<PAGE> 15
other instruments, (v) obligations of such Person to purchase securities or
other property arising out of or in connection with the sale of the same or
substantially similar securities or property, (vi) Capitalized Lease
Obligations, (vii) actual and contingent reimbursement obligations in respect of
Letters of Credit, (viii) net amounts payable under Rate Hedging Agreements,
(ix) any other obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles would be shown as a
liability on the consolidated balance sheet of such Person, and (x) any material
repurchase obligations or liabilities of such Person with respect to accounts or
notes receivable sold with recourse by such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, membership interests, notes, debentures or other
securities owned by such Person; any deposit or certificate of deposit owned by
such Person; and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
"Issuance Request" is defined in Section 2.19.4.
"Issuer" means, with respect to any Facility Letter of Credit, First
Chicago or such other Lender which has been requested by the Borrower to act as,
and has agreed to act as, the issuer of such Facility Letter of Credit.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
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"Letter of Credit Cash Collateral Account" is defined in Section 8.1.
Such account and the related cash collateralization shall be subject to
documentation satisfactory to the Agent.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Indebtedness (excluding net amounts payable under Rate Hedging
Agreements) outstanding on such date to (ii) Consolidated EBITDA for the
Borrower's then most-recently ended four Fiscal Quarters, including any Fiscal
Quarters ending on the date of determination.
"Lien" means any security interest, lien (statutory or other),
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan" means, with respect to a Lender, any loan made by such Lender
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Reimbursement
Agreements, the Subsidiary Guaranty and the other documents and agreements
contemplated hereby and executed by the Borrower or any Guarantor in favor of
the Agent or any Lender.
"LTI" means Life Technologies, Inc., a Delaware corporation.
"Margin Stock" has the meaning assigned to that term under Regulation
U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole, giving pro forma effect to the
consummation of the Merger, (b) the ability of the Borrower to perform its
obligations under the Loan Documents, (c) the validity or enforceability of any
of the Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder or (d) prior to the Merger, the business, Property, financial
condition or results of operations of LTI.
"Material Domestic Subsidiary" means a direct or indirect Subsidiary of
the Borrower which is organized under the laws of a jurisdiction located within
the United States and
(a) which meets any of the following conditions:
(i) the Borrower's and its other Subsidiaries' investments
in and advances to the Subsidiary exceed 10 percent of the total assets
of the Borrower and its Subsidiaries consolidated as of the end of the
most recently completed Fiscal Year;
(ii) the Borrower's and its other Subsidiaries'
proportionate share of the total assets (after intercompany
eliminations) of the Subsidiary exceeds 10 percent of the total assets
of the Borrower and its Subsidiaries consolidated as of the end of the
most recently completed Fiscal Year; or
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(iii) the Borrower's and its other Subsidiaries' equity in
the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds 10 percent of such income of the
Borrower and its Subsidiaries consolidated for the most recently
completed Fiscal Year; or
(b) which has been designated a Material Domestic Subsidiary by the
Borrower pursuant to Section 6.26.
"Merger" means the merger of Merger Sub with and into LTI pursuant to a
Merger Agreement or the "short-form" merger provisions of Section 253 of the
Delaware Corporation Law.
"Merger Agreement" means a merger agreement among the Borrower, LTI and
Merger Sub in form and substance satisfactory to the Agent.
"Merger Sub" means Dexter Acquisition Delaware, Inc., a Delaware
corporation and Wholly-Owned Subsidiary of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income earned during such period as determined in accordance with Agreement
Accounting Principles.
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit A, including any amendment,
modification, renewal or replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, the Facility Letter of Credit Obligations and all other
liabilities (if any), whether actual or contingent, of the Borrower with respect
to Facility Letters of Credit, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party hereunder arising under any
of the Loan Documents.
"Offer to Purchase" means the Offer to Purchase for Cash by Merger Sub
dated November 2, 1998 as modified through December 7, 1998, pursuant to which
Merger Sub offered to purchase all of the issued and outstanding common shares
of LTI not already owned by the Borrower.
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"Other Credit Agreement" means the 364-day Credit Facility dated as of
the date hereof by and among Dexter Corporation, the lenders named therein and
First Chicago, as agent, as from time to time amended, restated, supplemented or
otherwise modified.
"Other Loans" means, collectively, all "Loans" under and as defined in
the Other Credit Agreement.
"Other Taxes" is defined in Section 3.5(b).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Forma" is defined in Section 5.4.
"pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the aggregate principal amount
of outstanding Advances and Facility Letter of Credit Obligations.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company or division or line of business thereof, whether through purchase of
assets, merger or otherwise, or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding ownership interests
of a partnership or limited liability company.
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"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, raw material commodity hedges, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and shall include any
successor or other regulation or official interpretation of such Board of
Governors relating to the extension of credit by securities brokers and dealers
for the purpose of purchasing or carrying margin stocks applicable to such
Persons.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by the specified lenders for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
"Reimbursement Agreement" means a letter of credit application and
reimbursement agreement in such form as the Issuer may from time to time employ
in the ordinary course of business.
"Reimbursement Obligations" means, at any time, the aggregate (without
duplication) of the Obligations of the Borrower to the Lenders, the Issuer
and/or the Agent in respect of all unreimbursed payments or disbursements made
by the Lenders, the Issuer and/or the Agent under or in respect of draws made
under the Facility Letters of Credit.
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<PAGE> 20
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event; provided, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
the sum of (i) the aggregate unpaid principal amount of the outstanding Loans
plus (ii) the aggregate amount of the outstanding Facility Letter of Credit
Obligations.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Response Date" is defined in Section 2.20.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Scheduled Asset Sale" means the sale of the Borrower's Packaging
Coatings business and Dexter S.A.S., a societe anonyme organized under the laws
of the Republic of France.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, association, joint venture, limited liability company or
similar business organization more than 50% of the ownership interests having
ordinary voting
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<PAGE> 21
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain Guaranty, substantially in the
form of Exhibit D hereto and dated as of the date hereof, duly executed and
delivered by the Borrower's Material Domestic Subsidiaries in favor of the
Agent, on behalf of the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time, including by way of a joinder agreement.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property (a) which represents more than 25% of
Consolidated Total Assets as at the end of the quarter next preceding the date
on which such determination is made, or (b) as to which, in each of the three
Fiscal Years most recently ended prior to the date of determination, (i) the
portion of Consolidated EBITDA which was contributed during each of such Fiscal
Years by such Property, plus (ii) the portions of Consolidated EBITDA which were
contributed during each of such Fiscal Years by all other Property which was
sold, transferred or otherwise disposed of subsequent to the beginning of the
12-month period ending immediately prior to the date of determination, up to and
including the date of determination, constituted more than 25% of Consolidated
EBITDA for any of such three Fiscal Years.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Tender Offer" means the offer to purchase for cash all the common
stock of LTI not already owned by the Borrower made pursuant to the Offer to
Purchase.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or
any other member of the Controlled Group from such Plan during a plan year in
which the Borrower or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was deemed
such under Section 4068(f) of ERISA, (c) the termination of such Plan, the
filing of a notice of intent to terminate such Plan or the treatment of an
amendment of such Plan as a termination under Section 4041 of ERISA, (d) the
institution by the PBGC of proceedings to terminate such Plan or (e) any event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or appointment of a trustee to administer, such Plan.
"Transaction Documents" means the Loan Documents and the Acquisition
Documents.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as an Alternate
Base Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all
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<PAGE> 22
such Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions for single
employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture,
limited liability company or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.20.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Advances. (a) From and including the date hereof to but excluding
the Facility Termination Date, each Lender severally (and not jointly) agrees,
on the terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not to exceed in the aggregate at any one
time outstanding the amount of its pro-rata share of the Aggregate Available
Commitment existing at such time. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Advances at any time prior to the
Facility Termination Date. The Commitments to lend and to issue or participate
in Facility Letters of Credit shall expire on the Facility Termination Date.
(b) The Borrower hereby agrees that, if at any time as a
result of reductions in the Aggregate Commitment pursuant to Section 2.4(b) or
otherwise, the aggregate balance of the sum of the Loans and the Facility Letter
of Credit Obligations exceeds the Aggregate Commitment, the Borrower shall repay
immediately its then outstanding Loans in such amount as may be necessary to
eliminate such excess; provided, that if an excess remains after repayment of
all outstanding Loans, then the Borrower shall cash collateralize the Facility
Letter of Credit
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<PAGE> 23
Obligations by depositing into the Letter of Credit Cash Collateral Account such
amount as may be necessary to eliminate such excess.
(c) Any outstanding Advances and all other unpaid Obligations
shall be paid in full by the Borrower on the Facility Termination Date.
2.2. Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
2.3. Types of Advances. The Advances may be Alternate Base Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9.
2.4. Facility and Utilization Fees; Reductions in Aggregate Commitment.
(a) The Borrower agrees to pay to the Agent for the account of each Lender a
facility fee at a per annum rate equal to the Applicable Facility Fee Rate on
the daily average Commitment of such Lender (regardless of usage) from the date
hereof to and including the Facility Termination Date, payable on each Payment
Date hereafter and on the Facility Termination Date. The Borrower also agrees to
pay to the Agent for the pro-rata account of the Lenders a utilization fee for
each day from the date hereof to and including the later of the Facility
Termination Date and the date all Loans are paid in full and all Facility
Letters of Credit have expired or been canceled, such utilization fee to be
equal to the Applicable Utilization Fee Rate for such day multiplied by the
aggregate outstanding principal amount of the Loans and the outstanding amount
of Facility Letter of Credit Obligations on such day, payable on each Payment
Date and the Facility Termination Date.
(b) The Borrower may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Lenders in a minimum aggregate
amount of $10,000,000 or any integral multiple of $5,000,000 in excess thereof,
upon at least five (5) Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Commitment may not be reduced below the sum of (i) the
aggregate principal amount of the outstanding Advances, plus (ii) the aggregate
amount of the outstanding Facility Letter of Credit Obligations. All accrued
facility and utilization fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
2.5. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $10,000,000 (and in multiples of $1,000,000 if in
excess thereof), and each Alternate Base Rate Advance shall be in the minimum
amount of $5,000,000 (and in multiples of $500,000 if in excess thereof);
provided, however, that (a) any Alternate Base Rate Advance may be in the amount
of the unused Aggregate Commitment and (b) in no event shall more than six (6)
Eurodollar Advances be permitted to be outstanding at any time.
2.6. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Alternate Base Rate Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$500,000 in excess thereof, any portion of the
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outstanding Alternate Base Rate Advances upon notice to the Agent prior to 10:00
a.m. (Chicago time) on the date of such prepayment. The Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three (3) Business Days' prior notice to
the Agent.
2.7. [Intentionally omitted.]
2.8. Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time.
The Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 10:00 a.m. (Chicago time) at least one (1) Business Day before the
Borrowing Date of each Alternate Base Rate Advance and at least three (3)
Business Days before the Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date of such Advance, which shall be a
Business Day;
(b) the aggregate amount of such Advance;
(c) the Type of Advance selected; and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto, which shall end on or prior to the Facility
Termination Date.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances. Alternate
Base Rate Advances shall continue as Alternate Base Rate Advances unless and
until such Alternate Base Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.6. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into a Alternate Base Rate Advance unless (x)
such Eurodollar Advance is or was repaid in accordance with Section 2.6 or (y)
the Borrower shall have given the Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.5, the Borrower may elect
from time to time to convert all or any part of a Alternate Base Rate Advance
into a Eurodollar Advance. The Borrower shall give the Agent irrevocable notice
(a "Conversion/Continuation Notice") of each conversion of a Alternate Base Rate
Advance into a Eurodollar Advance or continuation of a Eurodollar Advance not
later than 10:00 a.m. (Chicago time) at least three (3) Business Days prior to
the date of the requested conversion or continuation, specifying:
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(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Alternate Base Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically converted
from a Eurodollar Advance into an Alternate Base Rate Advance pursuant to
Section 2.9, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.9 hereof, at a rate per annum equal to
the Alternate Base Rate for such day. Changes in the rate of interest on that
portion of any Advance maintained as a Alternate Base Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined by the Agent as applicable to such Eurodollar Advance
based upon the Borrower's selections under Section 2.8 and 2.9 and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default under Section 7.2, 7.6 or 7.7, without any election or action on the
part of the Agent or any Lender, (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each Alternate
Base Rate Advance shall bear interest at a rate per annum equal to the Alternate
Base Rate in effect from time to time plus 2% per annum and (iii) the fee
payable pursuant to Section 2.19.6(b) with respect to all outstanding Facility
Letters of Credit shall be increased by 2% per annum.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (Chicago time) on the date when
due and shall be applied ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the Borrower maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
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2.13. Noteless Agreement; Evidence of Indebtedness. (a) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided, however,
that in the event of a conflict between the accounts maintained pursuant to
paragraphs (a) and (b) above, the accounts maintained pursuant to paragraph (a)
above shall be presumed to be correct absent demonstrable error, provided,
further, that the failure of the Agent or any Lender to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare, execute
and deliver to such Lender a Note payable to the order of such Lender in a form
supplied by the Agent. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (a) and (b) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be an
Authorized Officer or other person previously authorized in writing by the
Borrower to take such actions on behalf of the Borrower. The Borrower agrees to
deliver promptly to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Agent and the Lenders, the records of the Agent and
the Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Alternate Base Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof and at
maturity. Interest accrued on each Eurodollar Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the
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last day of each three-month interval during such Interest Period. Interest
shall be calculated for actual days elapsed on the basis of a 365 (or 366, as
applicable) day year with respect to Alternate Base Rate Advances. Interest with
respect to Eurodollar Advances and fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to noon (Chicago time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments, Commitment
Reductions and Issuance Requests. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/ Continuation Notice, Issuance Request and
repayment notice received by it hereunder. The Agent will notify each Lender of
the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (y) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.19. Facility Letters of Credit.
2.19.1 Issuance of Facility Letters of Credit. (a) From and
after the date hereof, the Issuer agrees, upon the terms and conditions
set forth in this Agreement, to issue at the request and for the
account of the Borrower, one or more Facility Letters of Credit;
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provided, however, that the Issuer shall not be under any obligation to
issue, and shall not issue, any Facility Letter of Credit if (i) any
order, judgment or decree of any governmental authority or other
regulatory body with jurisdiction over the Issuer shall purport by its
terms to enjoin or restrain such Issuer from issuing such Facility
Letter of Credit, or any law or governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) from
any governmental authority or other regulatory body with jurisdiction
over the Issuer shall prohibit, or request that the Issuer refrain
from, the issuance of Facility Letters of Credit in particular or shall
impose upon the Issuer with respect to any Facility Letter of Credit
any restriction or reserve or capital requirement (for which the Issuer
is not otherwise compensated) or any unreimbursed loss, cost or expense
which was not applicable, in effect and known to the Issuer as of the
date of this Agreement and which the Issuer in good faith deems
material to it; (ii) one or more of the conditions to such issuance
contained in Section 4.2 is not then satisfied; or (iii) after giving
effect to such issuance, the aggregate outstanding amount of the
Facility Letter of Credit Obligations would exceed the Facility Letter
of Credit Sublimit.
(b) In no event shall: (i) the aggregate amount of the
Facility Letter of Credit Obligations at any time exceed the Facility
Letter of Credit Sublimit; (ii) the sum at any time of (A) the
aggregate amount of Facility Letter of Credit Obligations and (B) the
aggregate principal balance of outstanding Advances exceed the amount
of the Aggregate Commitment; or (iii) the expiration date of any
Facility Letter of Credit (including, without limitation, Facility
Letters of Credit issued with an automatic "evergreen" provision
providing for renewal absent advance notice by the Borrower or the
Issuer), or the date for payment of any draft presented thereunder and
accepted by the Issuer, be later than the earlier of (A) one year after
the date of issuance and (B) five (5) Business Days prior to the
Facility Termination Date.
2.19.2 Participating Interests. Immediately upon the issuance
by the Issuer of a Facility Letter of Credit in accordance with Section
2.19.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without
recourse, representation or warranty, an undivided participation
interest equal to its pro-rata share of the Aggregate Commitment of the
face amount of such Facility Letter of Credit and each draw paid by the
Issuer thereunder. Each Lender's obligation to pay its proportionate
share of all draws under the Facility Letters of Credit, absent gross
negligence or willful misconduct by the Issuer in honoring any such
draw, shall be absolute, unconditional and irrevocable and in each case
shall be made without counterclaim or set-off by such Lender.
2.19.3 Facility Letter of Credit Reimbursement Obligations.
(a) The Borrower agrees to pay to the Issuer of a Facility Letter of
Credit (i) on each date that any amount is drawn under each Facility
Letter of Credit a sum (and interest on such sum as provided in clause
(ii) below) equal to the amount so drawn plus all other charges and
expenses with respect thereto specified in Section 2.19.6 or in the
applicable Reimbursement Agreement and (ii) interest on any and all
amounts remaining unpaid under this Section 2.19.3 until payment in
full at the Alternate Base Rate plus the margin specified in Section
2.11. The Borrower agrees to pay to the Issuer the amount of all
Facility Letter of Credit
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Reimbursement Obligations owing in respect of any Facility Letter of
Credit immediately when due, under all circumstances, including,
without limitation, any of the following circumstances: (w) any lack of
validity or enforceability of this Agreement or any of the other Loan
Documents; (x) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Facility Letter of Credit, any transferee of any Facility
Letter of Credit (or any Person for whom any such transferee may be
acting), any Lender or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named
in any Facility Letter of Credit); (y) the validity, sufficiency or
genuineness of any document which the Issuer has determined in good
faith and in the absence of gross negligence complies on its face with
the terms of the applicable Facility Letter of Credit, even if such
document should later prove to have been forged, fraudulent, invalid or
insufficient in any respect or any statement therein shall have been
untrue or inaccurate in any respect; or (z) the surrender or impairment
of any security for the performance or observance of any of the terms
hereof.
(b) Notwithstanding any provisions to the contrary in any
Reimbursement Agreement, the Borrower agrees to reimburse the Issuer
for amounts which the Issuer pays under such Facility Letter of Credit
no later than the time specified in this Agreement. If the Borrower
does not pay any such Facility Letter of Credit Reimbursement
Obligations when due, the Borrower shall be deemed to have immediately
requested that the Lenders make an Alternate Base Rate Advance under
this Agreement in a principal amount equal to such unreimbursed
Facility Letter of Credit Reimbursement Obligations. The Agent shall
promptly notify the Lenders of such deemed request and, without the
necessity of compliance with the requirements of Sections 2.5 and 4.2,
each Lender shall make available to the Agent its Loan in the manner
prescribed for Alternate Base Rate Advances. The proceeds of such Loans
shall be paid over by the Agent to the Issuer for the account of the
Borrower in satisfaction of such unreimbursed Facility Letter of Credit
Reimbursement Obligations, which shall thereupon be deemed satisfied by
the proceeds of, and replaced by, such Alternate Base Rate Advance.
(c) If the Issuer makes a payment on account of any Facility
Letter of Credit and is not concurrently reimbursed therefor by the
Borrower and if for any reason an Alternate Base Rate Advance may not
be made pursuant to paragraph (b) above, then as promptly as practical
during normal banking hours on the date of its receipt of such notice
or, if not practicable on such date, not later than noon (Chicago time)
on the Business Day immediately succeeding such date of notification,
each Lender shall deliver to the Agent for the account of the Issuer,
in immediately available funds, the purchase price for such Lender's
interest in such unreimbursed Facility Letter of Credit Obligations,
which shall be an amount equal to such Lender's pro-rata share of such
payment. Each Lender shall, upon demand by the Issuer, pay the Issuer
interest on such Lender's pro-rata share of such draw from the date of
payment by the Issuer on account of such Facility Letter of Credit
until the date of delivery of such funds to the Issuer by such Lender
at a rate per annum, computed for actual days elapsed based on a
360-day year, equal to the Federal Funds Effective Rate
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for such period; provided, that such payments shall be made by the
Lenders only in the event and to the extent that the Issuer is not
reimbursed in full by the Borrower for interest on the amount of any
draw on the Facility Letters of Credit.
(d) At any time after the Issuer has made a payment on account
of any Facility Letter of Credit and has received from any other Lender
such Lender's pro-rata share of such payment, such Issuer shall,
forthwith upon its receipt of any reimbursement (in whole or in part)
by the Borrower for such payment, or of any other amount from the
Borrower or any other Person in respect of such payment (including,
without limitation, any payment of interest or penalty fees and any
payment under any collateral account agreement of the Borrower or any
Loan Document but excluding any transfer of funds from any other Lender
pursuant to Section 2.19.3(b)), transfer to such other Lender such
other Lender's ratable share of such reimbursement or other amount;
provided, that interest shall accrue for the benefit of such Lender
from the time such Issuer has made a payment on account of any Facility
Letter of Credit; provided, further, that in the event that the receipt
by the Issuer of such reimbursement or other amount is found to have
been a transfer in fraud of creditors or a preferential payment under
the United States Bankruptcy Code or is otherwise required to be
returned, such Lender shall promptly return to the Issuer any portion
thereof previously transferred by the Issuer to such Lender, but
without interest to the extent that interest is not payable by the
Issuer in connection therewith.
2.19.4 Procedure for Issuance. Prior to the issuance of each
Facility Letter of Credit, and as a condition of such issuance, the
Borrower shall deliver to the Issuer (with a copy to the Agent) a
Reimbursement Agreement signed by the Borrower, together with such
other documents or items as may be required pursuant to the terms
thereof, and the proposed form and content of such Facility Letter of
Credit shall be reasonably satisfactory to the Issuer. Each Facility
Letter of Credit shall be issued no earlier than two (2) Business Days
after delivery of the foregoing documents, which delivery may be by the
Borrower to the Issuer by telecopy, telex or other electronic means
followed by delivery of executed originals within five (5) days
thereafter. The documents so delivered shall be in compliance with the
requirements set forth in Section 2.19.1(b), and shall specify therein
(i) the stated amount of the Facility Letter of Credit requested, (ii)
the effective date of issuance of such requested Facility Letter of
Credit, which shall be a Business Day, (iii) the date on which such
requested Facility Letter of Credit is to expire, which shall be at
least five (5) Business Days prior to the Facility Termination Date,
(iv) the entity for which the requested Facility Letter of Credit is to
be issued, which shall be the Borrower or a Subsidiary, and (v) the
aggregate amount of Facility Letter of Credit Obligations which are
outstanding and which will be outstanding after giving effect to the
requested Facility Letter of Credit issuance. The delivery of the
foregoing documents and information shall constitute an "Issuance
Request" for purposes of this Agreement. Subject to the terms and
conditions of Section 2.19.1 and provided that the applicable
conditions set forth in Section 4.2 hereof have been satisfied, the
Issuer shall, on the requested date, issue a Facility Letter of Credit
on behalf of the Borrower in accordance with the Issuer's usual and
customary business practices. In addition, any amendment of an existing
Facility Letter of Credit shall be deemed to be an issuance of a new
Facility Letter of Credit and shall be subject to the requirements set
forth
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above. The Issuer shall give the Agent prompt written notice of the
issuance of any Facility Letter of Credit.
2.19.5 Nature of the Lenders' Obligations. (a) As between the
Borrower and the Lenders, the Borrower assumes all risks of the acts
and omissions of, or misuse of the Facility Letters of Credit by, the
respective beneficiaries of the Facility Letters of Credit. In
furtherance and not in limitation of the foregoing, the Lenders shall
not be responsible for (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of a Facility Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of a Facility Letter of Credit to comply
fully with conditions required to be satisfied by any Person other than
the Issuer in order to draw upon such Facility Letter of Credit; (iv)
errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise; (v)
errors in the interpretation of technical terms; (vi) the
misapplication by the beneficiary of a Facility Letter of Credit of the
proceeds of any drawing under such Facility Letter of Credit; or (vii)
any consequences arising from causes beyond control of the Issuer.
(b) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuer under or in connection with the Facility Letters of
Credit or any related certificates, if taken or omitted in good faith
and in the absence of gross negligence, shall not put the Agent or any
Lender under any resulting liability to the Borrower or relieve the
Borrower of any of its obligations hereunder to the Issuer or any such
Person.
2.19.6 Facility Letter of Credit Fees. The Borrower hereby
agrees to pay to the Agent, for the ratable account of the Lenders,
letter of credit fees with respect to each Facility Letter of Credit
from and including the date of issuance thereof until the date such
Facility Letter of Credit is fully drawn, cancelled or expired, equal
to the Applicable Margin multiplied by the aggregate amount from time
to time available to be drawn on such Facility Letter of Credit,
calculated with respect to actual days elapsed on the basis of a
360-day year and payable quarterly in arrears on each Payment Date in
each year and upon the expiration, cancellation or utilization in full
of such Facility Letter of Credit. In addition to the foregoing, the
Borrower agrees to pay the Issuer for its own account (a) a fronting
fee equal to .125% per annum on the face amount of each Facility Letter
of Credit issued by such Issuer, calculated with respect to actual days
elapsed on the basis of a 360-day year and payable quarterly in arrears
and (b) any other fees customarily charged by it in respect of Letters
of Credit issued by it.
2.20. Extension of Facility Termination Date. The Borrower may request
an extension of the Facility Termination Date by submitting a request for an
extension to the Agent (an "Extension Request") no more than sixty (60) days
prior to each anniversary of the date hereof. The
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Extension Request must specify the new Facility Termination Date requested by
the Borrower and the date (which must be at least thirty (30) days after the
Extension Request is delivered to the Agent) as of which the Lenders must
respond to the Extension Request (the "Response Date"). The new Facility
Termination Date shall be the date one year after the Facility Termination Date
in effect at the time the Extension Request is received. Promptly upon receipt
of an Extension Request, the Agent shall notify each Lender of the contents
thereof and shall request each Lender to approve the Extension Request. Each
Lender, acting in its sole discretion, may approve or decline to approve such
Extension Request. Each Lender approving the Extension Request shall deliver its
written consent no later than the Response Date. If and only if the written
consent of each of the Lenders is received by the Agent prior to the then
effective Facility Termination Date, the Facility Termination Date specified in
the Extension Request shall become effective on the existing Facility
Termination Date and the Agent shall promptly notify the Borrower and each
Lender of the new Facility Termination Date. Notwithstanding the foregoing, in
no event shall there be more than three one-year extensions pursuant to this
Section.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(a) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect
of its Eurodollar Loans or its interest in the Facility
Letters of Credit, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or
issuing Facility Letters of Credit or reduces any amount
receivable by any Lender or any applicable Lending
Installation in connection with its Eurodollar Loans or any
Facility Letter of Credit, or requires any Lender or any
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applicable Lending Installation to make any payment calculated
by reference to the amount of Eurodollar Loans held, Facility
Letters of Credit issued or participated in or interest
received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or its interest in the Facility Letters of Credit or to reduce the
return received by such Lender or applicable Lending Installation in connection
with such Eurodollar Loans or Commitment in either case by an amount which such
Lender deems to be material, then, within fifteen (15) days of demand by such
Lender, the Borrower shall pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in amount
received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
applicable Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within fifteen (15) days
of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If (a) any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law and gives notice of such determination to the Borrower
and the Agent, or (b) if the Required Lenders determine that (i) deposits of a
type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance from the
affected Lender, in the case of any occurrence set forth in clause (a), or from
all the Lenders, in the case of any occurrence set forth in clause (b), and, in
the case of any occurrence set forth in clause (a), require any affected
Eurodollar Advances to be repaid or converted to Alternate Base Rate Advances,
subject to the payment of any funding indemnification amounts required by
Section 3.4. Until the Lender giving the notice in (a) above has either
rescinded such notice or been replaced pursuant to Section 3.7, any Eurodollar
Loan which would otherwise have been required to be made by such Lender shall be
made as an Alternate Base Rate Advance.
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3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by any Lender, the Borrower will indemnify each Lender for any loss
or cost incurred by it resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Advance.
3.5. Taxes. (a) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent the original copy of any receipt obtained by the Borrower
evidencing payment thereof within thirty (30) days after such receipt is
obtained.
(b) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(c) The Borrower hereby agrees to indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within thirty (30) days of the date the Agent or
such Lender makes demand therefor pursuant to Section 3.6.
(d) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten (10) Business Days after the date of this Agreement or,
if later, the date such Lender becomes a party hereto pursuant to Section 12.3,
(i) deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) deliver to each of the Borrower and the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent. All forms or amendments described in the preceding
sentence shall certify that such
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Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless 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 or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(e) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (d) above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (d), above, the Borrower shall take such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or
3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
3.7. Substitution of Lenders. Any Lender (a) claiming any additional
amounts payable pursuant to Section 3.1, 3.2, or 3.5, (b) which gives a notice
described in Section 3.3, or (c) declining to approve of an Extension Request
pursuant to Section 2.20, shall, so long as no Default or Unmatured Default has
occurred and is continuing, upon the written request of the Borrower
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delivered to such Lender and the Agent, assign, pursuant to and in accordance
with the provisions of Section 12.3, all of its rights and obligations under
this Agreement and under the Loan Documents to another Lender or to a commercial
bank, other financial institution, commercial finance company or other business
lender selected by the Borrower and reasonably acceptable to the Agent that (a)
has agreed not to claim any additional amounts under Section 3.1, 3.2 or 3.5
with respect to some or all of the costs or regulatory charges that gave rise to
such assigning Lender's claim for such compensation, (b) has not made a
determination of the type described in Section 3.3, or (c) has not declined to
approve of an Extension Request pursuant to Section 2.20, as applicable, in
consideration for (a) the payment by such assignee to such assigning Lender of
the principal of, and interest accrued and unpaid to the date of such assignment
on, the Loans held by such assigning Lender, (b) the payment by the Borrower to
such assigning Lender of any and all other amounts owing to such assigning
Lender under any provision of this Agreement accrued and unpaid to the date of
such assignment and (c) the payment by the Borrower to such assigning Lender of
any amounts which would be payable to such Lender pursuant to Section 3.4 were
such assignment treated as a repayment of such Loans.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Loans and Facility Letters of Credit. The Lenders shall
not be required to make the initial Advance hereunder and the Issuer shall not
be required to issue any Facility Letter of Credit hereunder unless the Borrower
has furnished the following to the Agent and the other conditions set forth
below have been satisfied, in each case on or before December 31, 1998:
(a) Charter Documents; Good Standing Certificates. Copies of
the articles or certificate of incorporation of the Borrower, together with all
amendments, and a certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(b) By-Laws and Resolutions. Copies, certified by the
Secretary or Assistant Secretary of the Borrower, of its by-laws and of its
Board of Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower is a
party.
(c) Secretary's Certificate. An incumbency certificate,
executed by the Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signature of the officers of the
Borrower authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(d) Officer's Certificate. A certificate, dated the date of
the initial Advance hereunder signed by an Authorized Officer of the Borrower,
in form and substance satisfactory to the Agent, to the effect that: (i) on such
date (both before and after giving effect to the consummation of the Tender
Offer, the consummation of the other transactions contemplated hereby
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(other than the Merger if it has not occurred as of such date), the making of
the Loans and the issuance of any Facility Letters of Credit hereunder
(collectively, the "Closing Transactions")) no Default or Unmatured Default has
occurred and is continuing; (ii) no injunction or temporary restraining order
which would prohibit the making of the Loans, the issuance of the Facility
Letters of Credit or consummation of any of the Closing Transactions, or other
litigation which could reasonably be expected to have a Material Adverse Effect
is pending or, to the best of such Person's knowledge, threatened; (iii) all
orders, consents, approvals, licenses, authorizations, or validations of, or
filings, recordings or registrations with, or exemptions by, any governmental or
public body or authority, or any subdivision thereof, required to make or
consummate the Closing Transactions have been or, prior to the time required,
will have been, obtained, given, filed or taken and are or will be in full force
and effect (or the Borrower has obtained effective judicial relief with respect
to the application thereof) and all applicable waiting periods have expired;
(iv) the Transaction Documents (other than the Merger Agreement if the Board of
Directors of LTI has not approved the Merger) are in full force and effect and
no term or condition thereof has been amended, modified or waived after the
execution thereof in any material respects except with the written consent of
the Agent; (v) all conditions precedent to the consummation of the Tender Offer
set forth in the Offer to Purchase have been satisfied or waived with the
consent of the Agent; (vi) (A) if the board of directors of LTI has approved the
Merger, (1) the Borrower, Merger Sub and LTI have entered into the Merger
Agreement; (2) the Merger Agreement has been approved by all necessary corporate
action of the Borrower's, Merger Sub's and LTI's respective Board of Directors;
(3) there has not occurred any material breach or default under the Merger
Agreement; and (4) there shall have been tendered for purchase pursuant to the
Offer to Purchase, and Merger Sub shall have accepted for payment pursuant to
the Offer to Purchase, at least that number of common shares of LTI which, when
added to the common shares of LTI already owned by the Borrower, enable the
Borrower to cause the Merger to occur without the approval of any other equity
holder of LTI; or (B) if the Board of Directors of LTI has not approved the
Merger, the Tender Offer has been approved by all necessary corporate action of
the Borrower's and Merger Sub's respective Board of Directors; (vii) neither the
Borrower nor any Subsidiary has failed to perform any material obligation or
covenant required in connection with any Closing Transaction to be performed or
complied with by it on or before such date; (ix) each of the representations and
warranties set forth in Article V of this Agreement is true and correct on and
as of such date; and (x) since June 30, 1998, no event or change has occurred
that has caused or evidences a Material Adverse Effect.
(e) Legal Opinions. (i) A written opinion of Jones, Day,
Reavis & Pogue, counsel to the Borrower and its Subsidiaries, addressed to the
Agent and the Lenders in form and substance acceptable to the Agent and its
counsel, (ii) a written opinion of in-house counsel to the Borrower and its
Subsidiaries, on issues of Connecticut law, addressed to the Agent and the
Lenders in form and substance acceptable to the Agent and its counsel, and (iii)
to the extent applicable, confirmation from counsel to each party to the Merger
Agreement that the Agent and the Lenders may rely upon any opinion delivered by
it pursuant to the Merger Agreement.
(f) Notes. Any Notes requested by a Lender pursuant to Section
2.13 payable to the order of each such requesting Lender.
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(g) Loan Documents. Executed originals of this Agreement and
each of the Loan Documents, which shall be in full force and effect, together
with all schedules, exhibits, certificates, instruments, opinions and documents
required to be delivered pursuant hereto and thereto.
(h) Letters of Direction. Written money transfer instructions
with respect to the initial Advances and to future Advances in form and
substance acceptable to the Agent and its counsel addressed to the Agent and
signed by an Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(i) Acquisition Documents. Either (i) if the Board of
Directors of LTI has approved the Merger, a copy of the executed Merger
Agreement and the other Acquisition Documents and any amendments, supplements
and modifications thereto certified as true and complete by an Authorized
Officer of the Borrower or (ii) if the Board of Directors of LTI has not
approved the Merger, a copy of the Offer to Purchase and the other Acquisition
Documents (other than the Merger Agreement) and any amendments, supplements and
modifications thereto certified as true and complete by an Authorized Officer of
the Borrower. The material terms and conditions of the Offer to Purchase and the
Merger Agreement (if the Merger has been approved by the Board of Directors of
LTI), including without limitation, the consideration and structure of the
Acquisition, shall be reasonably acceptable to the Agent.
(j) Solvency Certificate. A written solvency certificate from
the chief financial officer of the Borrower in form and content satisfactory to
the Agent, dated the initial Borrowing Date, with respect to the value, solvency
and other factual information of, or relating to, as the case may be, the
Borrower on a consolidated basis, after giving effect to the Closing
Transactions contemplated by the Transaction Documents.
(k) Financial Statements. The Agent and the Lenders shall have
received not less than five (5) Business Days prior to the initial Borrowing
Date (i) the Pro Forma, which must not be materially less favorable, in the
Agent's reasonable judgment, than the projections previously provided to the
Agent and which must demonstrate, in the Agent's reasonable judgment, together
with all other information then available to the Agent, that the Borrower and
its Subsidiaries can repay their debts and satisfy their respective other
obligations as and when due, and can comply with the financial covenants set
forth herein, (ii) audited financial statements of Borrower and its Subsidiaries
and LTI and its Subsidiaries for the year ended December 31, 1997 and unaudited
financial statements of Borrower and its Subsidiaries and LTI and its
Subsidiaries for the Fiscal Quarter ended June 30, 1998, and (iii) such
information as the Agent may reasonably request to confirm the tax, legal and
business assumptions made in the financial statements delivered pursuant to
clauses (i) and (ii) hereof.
(l) Guarantor Charter Documents; Good Standing Certificates.
Copies of the articles or certificates of incorporation of each Guarantor,
together with all amendments thereto, both certified by the appropriate
governmental officer in its jurisdiction of incorporation, together with a good
standing certificate issued by the Secretary of State of the jurisdiction of its
incorporation and such other jurisdictions as shall be requested by the Agent.
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(m) Guarantor By-Laws and Resolutions. Copies, certified by
the Secretary or Assistant Secretary of each Guarantor, of the by-laws and Board
of Directors' resolutions of such Guarantor (and resolutions of other bodies, if
any are deemed necessary by counsel for the Agent) authorizing the execution,
delivery and performance of the Loan Documents to which each such Guarantor is a
party.
(n) Guarantor Secretary's Certificate. An incumbency
certificate, executed by the Secretary or Assistant Secretary of each Guarantor,
which shall identify by name and title and bear the signature of the officers of
such Guarantor authorized to sign the Loan Documents to which such Guarantor is
party upon which certificate the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.
(o) Lien Searches. Copies of searches of financing statements
filed under the Uniform Commercial Code, together with tax lien and judgment
searches with respect to the assets of the Borrower and its Subsidiaries, in
both cases in such jurisdictions as the Agent may request.
(p) Approvals. Either (i) if the Board of Directors of LTI has
approved the Merger, evidence satisfactory to the Agent that the Borrower's and
LTI's directors shall have approved the Acquisition, that sufficient shares of
LTI shall have been tendered to allow the Borrower, giving effect to the shares
of LTI already owned by the Borrower, to cause a merger between Merger Sub and
LTI to occur without the approval of any other equity holder of LTI, and all
regulatory and legal approvals pertaining to the Acquisition, this Agreement and
the Other Credit Agreement shall have been obtained or (ii) if the Board of
Directors of LTI has not approved the Merger, evidence satisfactory to the Agent
that the Board of Directors of the Borrower shall have approved the Tender Offer
and the financing contemplated hereby. All regulatory and legal approvals
pertaining to the Acquisition, this Agreement and the Other Credit Agreement
shall have been obtained and there shall exist no legal or practical impediment
to the consummation of the Merger in accordance with Section 6.25 (other than
receipt of the requisite number of votes of LTI shareholders).
(q) Litigation. Absence of injunction or temporary restraining
order which, in the reasonable judgment of the Agent, would prohibit the making
of the Loans or the successful completion of the Acquisition or the Scheduled
Asset Sale; and absence of litigation which would reasonably be expected to
result in a Material Adverse Effect.
(r) No Default; No MAC. Since June 30, 1998 there shall have
been no change in the business, Property, financial condition or results of
operations of the Borrower and its Subsidiaries (giving pro forma effect to the
consummation of the Merger) or LTI and its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect.
(s) Year 2000. Information reasonably satisfactory to the
Agent regarding the Year 2000 Programs of the Borrower and its Subsidiaries.
(t) Other Credit Agreement. The Other Credit Agreement shall
have been executed by the parties thereto and be in full force and effect.
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(u) Form U-1. Unless, after giving effect to the initial
Advance and the consummation of the Tender Offer, the Borrower shall directly or
indirectly own at least 90% of the shares of each outstanding class of equity
securities of LTI, a Federal Reserve Form U-1 duly executed by the Borrower as
required by Regulation U in form and substance satisfactory to the Agent and the
Lenders.
(v) Legal. All legal (including tax implications and ERISA,
if applicable) and regulatory matters relating to the Closing Transactions shall
be reasonably satisfactory to the Agent.
(w) Other. Such other documents as the Agent, any Lender or
their counsel may have reasonably requested.
4.2. Each Future Advance and Facility Letter of Credit. The Lenders
shall not be required to make any Advance (other than an Advance that, after
giving effect thereto and to the application of the proceeds thereof, does not
increase the aggregate amount of outstanding Advances), and the Issuer shall not
be obligated to issue any future Facility Letter of Credit unless on the
applicable Borrowing Date:
(a) There exists no Default or Unmatured Default and none
would result from such Advance or issuance of such Facility Letter of Credit;
(b) The representations and warranties contained in Article
V are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date;
(c) A Borrowing Notice or Issuance Request, as applicable,
shall have been properly submitted; and
(d) All legal matters incident to the making of such Advance
or issuance of such Facility Letter of Credit shall be reasonably satisfactory
to the Agent and its counsel.
Each Borrowing Notice with respect to each such Advance and each
Issuance Request with respect to each such Facility Letter of Credit shall
constitute a representation and warranty by the Borrower that the conditions
contained in Section 4.2 (a) and (b) have been satisfied. Any Lender may require
a duly completed compliance certificate in substantially the form of Exhibit B
hereto as a condition to making an Advance or issuing a Facility Letter of
Credit.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that, both before
and after giving effect to the Closing Transactions:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, partnership (in the case of Subsidiaries only) or limited
liability company (in the case of Subsidiaries only) duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
5.2. Authorization and Validity. The Borrower and each Guarantor has
the power and authority and legal right to execute and deliver the Loan
Documents and other Transaction Documents to which it is a party and to perform
its obligations thereunder. The execution and delivery by the Borrower and each
Guarantor of the Loan Documents and other Transaction Documents to which it is a
party and the performance of its respective obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents and
other Transaction Documents to which the Borrower or any Guarantor is a party
constitute legal, valid and binding obligations of the Borrower or such
Guarantor, as applicable, enforceable against the Borrower or such Guarantor, as
applicable, in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower or any Guarantor of the Loan Documents and other
Transaction Documents to which it is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents and other Transaction Documents,
the borrowings under this Agreement, the payment and performance by the Borrower
of the Obligations or the legality, validity, binding effect or enforceability
of any of the Loan Documents. Neither the Borrower nor any Subsidiary is in
default under or in violation
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of any foreign, federal, state or local law, rule, regulation, order, writ,
judgment, injunction, decree or award binding upon or applicable to the Borrower
or such Subsidiary, in each case the consequences of which default or violation
could reasonably be expected to have a Material Adverse Effect.
5.4. Financial Statements. The December 31, 1997 audited consolidated
financial statements and the June 30, 1998 unaudited consolidated financial
statements of (a) the Borrower and its Subsidiaries and (b) LTI and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present in all material respects the
consolidated financial condition and results of operations of the Borrower and
its Subsidiaries or LTI and its Subsidiaries, as applicable, at such date and
the consolidated results of their operations for the periods then ended. The pro
forma balance sheet and related profit and loss statement (the "Pro Forma") of
the Borrower and its Subsidiaries on a consolidated basis as of September 30,
1998 is attached hereto as Schedule 5.4. As of the date of this Agreement, the
Pro Forma is complete and accurate and fairly represents in all material
respects the Borrower's and the Subsidiaries' assets, liabilities, financial
condition and results of operations on a consolidated basis in accordance with
Agreement Accounting Principles, consistently applied, and taking into account
the Closing Transactions, the consummation of the Merger and the other
transactions and actions contemplated by this Agreement, the Loan Documents and
the Transaction Documents.
5.5. Material Adverse Change. Since June 30, 1998 there has been no
change in the business, Property, financial condition or results of operations
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes shown to be due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, the non-payment of which could not reasonably be
expected to have a Material Adverse Effect. As of the date hereof, the United
States income tax returns of the Borrower and its Subsidiaries have been audited
by the Internal Revenue Service through the Fiscal Year ended December 31, 1993
and those of LTI have been audited through the Fiscal Year ended December 31,
1989. No tax liens have been filed and no claims are being asserted with respect
to any such taxes. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Loans. Other than any liability incident to any litigation, arbitration or
proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
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5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $5,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans. Each Plan complies in all
material respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower nor
any other member of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
5.10. Defaults. No Default or Unmatured Default has occurred and is
continuing.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder. Neither the making of any Advance or issuance of any
Facility Letters of Credit hereunder, the use of the proceeds thereof, nor any
other aspect of the financing of the Acquisition, will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation X.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 5.14, on
the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.16, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Agent as owned by the Borrower and its
Subsidiaries.
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5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Acquisition Documents. The Borrower has delivered to the Agent
true, complete and correct copies of the Acquisition Documents (including all
schedules, exhibits, annexes, amendments, supplements, modifications, and all
other material documents delivered pursuant thereto or in connection therewith).
The Acquisition Documents as originally executed and delivered by the parties
thereto have not been amended, waived, supplemented or modified in any material
respect without the consent of the Required Lenders (such consent not to be
unreasonably withheld). Each of the representations and warranties given by the
parties thereto in the Merger Agreement is true and correct in all material
respects as of the date hereof. Neither the Borrower nor any other party thereto
is in default in the performance of or compliance with any provisions thereof.
The Merger Documents are, or if not yet executed, will be when executed, in form
and substance satisfactory for effecting the Merger pursuant to such agreements
under the laws of the State of Delaware.
5.20. Year 2000. The Borrower and its Subsidiaries have made an
assessment of the Year 2000 Issues and have developed a program (the "Year 2000
Program") for remediating the Year 2000 Issues on a timely basis. Based on such
assessment and on the Year 2000 Program neither
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the Borrower nor its Subsidiaries reasonably anticipate that Year 2000 Issues
will have a Material Adverse Effect.
5.21. Disclosure. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of the Loan Documents (taken as
a whole), or (b) representations or warranties of the Borrower or any Subsidiary
contained in this Agreement, the other Loan Documents, the Transaction Documents
or any other document, certificate or written statement furnished to the Agent
or the Lenders by or on behalf of the Borrower or any Subsidiary for use in
connection with the transactions contemplated by this Agreement or the
Transaction Documents, as the case may be, contained, contains or will contain
any untrue statement of a material fact or omitted, omits or will omit to state
a material fact necessary in order to make the statements contained herein or
therein not misleading at the time such representations or warranties were made
in light of the circumstances in which the same were made. The pro forma
financial information contained in such materials is based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, consistently applied,
and will furnish to the Lenders:
(a) As soon as practicable and in any event within one
hundred five (105) days after the close of each of its Fiscal Years, an
unqualified audit report certified by independent certified public accountants,
acceptable to the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period and related statements of income,
retained earnings and cash flows accompanied by a certificate of said
accountants that, in the course of the examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(b) As soon as practicable and in any event within sixty
(60) days after the close of the first three Fiscal Quarters of each of its
Fiscal Years, for itself and its Subsidiaries, consolidated unaudited balance
sheets as at the close of each such period and consolidated statements of
income, retained earnings and cash flows for the period from the beginning of
such Fiscal Year to the end of such quarter, all certified by its chief
financial officer or treasurer.
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(c) Together with the financial statements required by
clauses (a) and (b) above, a compliance certificate in substantially the form of
Exhibit B hereto signed by its chief financial officer or treasurer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(d) Within two hundred seventy (270) days after the close of
each Fiscal Year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under ERISA.
(e) As soon as possible and in any event within ten (10)
days after the Borrower knows that any Termination Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer of the
Borrower, describing said Termination Event and the action which the Borrower
proposes to take with respect thereto.
(f) As soon as possible and in any event within ten (10)
days after receipt by the Borrower, a copy of (i) any written notice, claim,
complaint or order to the effect that the Borrower or any of its Subsidiaries is
or may be liable to any Person as a result of any harm to the environment caused
by the Release by the Borrower, any of its Subsidiaries, or any other Person of
any Hazardous Materials into the environment or requiring that action be taken
to respond to or clean up a Release of Hazardous Materials into the environment,
and (ii) any notice, complaint or citation alleging any violation of any
Environmental Law or Environmental Permit by the Borrower or any of its
Subsidiaries which, in either case, could reasonably be expected to have a
Material Adverse Effect. Within ten (10) days of the Borrower or any Subsidiary
having knowledge of the proposal, enactment or promulgation of any Environmental
Law which could reasonably be expected to have a Material Adverse Effect, the
Borrower shall provide the Agent with written notice thereof.
(g) As soon as possible and in any event within ten (10)
days after the Borrower learns thereof, notice of the assertion or commencement
of any claims, action, suit or proceeding against or affecting the Company or
any Subsidiary which may reasonably be expected to have a Material Adverse
Effect.
(h) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(i) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(j) Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
to, use the proceeds of the Advances to refinance indebtedness existing on the
initial Borrowing Date, for capital expenditures, to provide funds for the
Acquisition and the payment of related fees and
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expenses and to meet the general corporate needs of the Borrower and its
Subsidiaries, including the financing of Purchases permitted hereby and
commercial paper back up. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances or any Facility Letters
of Credit to purchase or carry any "margin stock" (as defined in Regulation U)
or to finance the Purchase of any Person in a transaction which has not been
approved and recommended by the board of directors or functional equivalent
thereof of such Person.
6.3. Notice of Default. The Borrower will give prompt notice in writing
to the Agent upon any Authorized Officer obtaining knowledge of the occurrence
of (a) any Default or Unmatured Default and (b) of any other event or
development, financial or other, relating specifically to the Borrower or any of
its Subsidiaries (and not of a general economic or political nature), including
without limitation developments with respect to Year 2000 Issues, which could
reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and to do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by applicable law and pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to the Agent and any
Lender upon request full information as to the insurance carried; provided, that
nothing herein shall prohibit the Borrower and its Subsidiaries from maintaining
self-insurance in lieu of third party insurance consistent with past practices.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
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6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers, directors
and independent public accountants at such reasonable times and intervals as the
Lenders may designate. The Borrower will keep or cause to be kept, and cause
each Subsidiary to keep or cause to be kept, appropriate records and books of
account in which complete entries are to be made reflecting its and their
business and financial transactions, such entries to be made in accordance with
Agreement Accounting Principles consistently applied.
6.10. Capital Stock and Dividends. The Borrower will not, nor will it
permit any Subsidiary to, declare or pay any dividends or make any distributions
on its capital stock (other than dividends payable in its own capital stock) or
redeem, repurchase or otherwise acquire or retire any of its capital stock or
any options or other rights in respect thereof at any time outstanding, except
that (i) any Subsidiary may declare and pay dividends or make distributions to
the Borrower or to a Wholly-Owned Subsidiary of the Borrower and (ii) so long as
no Default or Unmatured Default is pending before or after giving effect to the
declaration or payment of such dividends or repurchase or redemption of such
stock, the Borrower may declare and pay dividends and repurchase and redeem its
capital stock.
6.11. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Loans and other Obligations;
(b) Indebtedness existing on the date hereof and described in
Schedule 6.11 hereto;
(c) Rate Hedging Obligations related to the Loans or the Other
Loans;
(d) Other Loans and other Obligations (as defined in the Other
Credit Agreement);
(e) other Indebtedness, before and after giving effect to
which no Default exists under Section 6.23.2 and no more than $75,000,000 of
which is at any time Indebtedness of Subsidiaries.
6.12. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (a) a
Wholly-Owned Subsidiary may merge into the Borrower or any Wholly-Owned
Subsidiary of the Borrower, (b) the Borrower or any Subsidiary may merge or
consolidate with any other Person so long as the Borrower or such Subsidiary is
the continuing or surviving corporation and, prior to and after giving effect to
such
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merger or consolidation, no Default or Unmatured Default shall exist, and (c)
any Subsidiary may enter into a merger or consolidation as a means of effecting
a disposition permitted by Section 6.13.
6.13. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property, to
any other Person except for (a) the Scheduled Asset Sale, (b) sales of inventory
in the ordinary course of business, and (c) leases, sales, transfers or other
dispositions of its Property that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold or disposed of during the
preceding twelve month period (other than Property leased, sold, transferred or
otherwise disposed of pursuant to (a) or (b) above) does not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
6.14. Investments and Purchases. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including,
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner or member in any partnership, limited liability company or
joint venture, or to make any Purchases, except:
(a) Cash Equivalent Investments;
(b) Existing Investments in Subsidiaries, Investments in
Wholly-Owned Subsidiaries and other Investments in existence on the date hereof
and described in Schedule 6.14 hereto;
(c) Investments to effect the Acquisition pursuant to the
terms of the Merger Agreement and/or the Offer to Purchase (including open
market and privately negotiated purchases as described therein) without waiver
of any material condition thereof;
(d) Investments incurred in order to consummate other
Purchases; provided that (i) the Borrower provides the Agent with a certificate
at least five (5) Business Days prior to the consummation of such Purchase
evidencing that, after giving effect to such Purchase, no Default or Unmatured
Default would exist under Section 6.23.2 as of such date (as determined on a pro
forma basis as of the last day of the preceding fiscal quarter) and (ii) the
Person or business which is the subject of such Purchase is in the same or
similar line of business as the Borrower and its Subsidiaries; and
(e) Other Investments made after the date hereof after giving
effect to which the aggregate amount of all such other Investments (calculated
on the basis of the initial amount of each such other Investment) does not
exceed 25% of Consolidated Total Assets as at the end of the quarter next
preceding the date on which such determination is made provided that no more
than 10% of Consolidated Total Assets as at the end of the quarter next
preceding the date on which such determination is made may be Investments in
Persons which are not Subsidiaries.
6.15. Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation, except (a)
by endorsement of instruments for deposit or collection in the ordinary course
of business, (b) Contingent Obligations in respect of
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Facility Letters of Credit, (c) the Subsidiary Guaranty, (d) Contingent
Obligations in respect of underlying obligations of a Subsidiary, (d) Contingent
Obligations of a Subsidiary in respect of Rate Hedging Obligations of the
Borrower permitted by Section 6.11(c) and (e) other Contingent Obligations
created in the ordinary course of the Borrower's or its Subsidiaries' business
of Indebtedness at no time exceeding $25,000,000 in aggregate principal amount.
6.16. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than sixty (60) days
past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(e) Liens existing on the date hereof and described in
Schedule 6.16 hereto;
(f) other Liens (including, without limitation, Liens
imposed pursuant to any Environmental Laws) incidental to the conduct of the
business or the ownership of the Property of the Borrower or any Subsidiary
(other than those specified in paragraphs (g) and (h) of this Section 6.16)
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate materially
detract from the value of such Property in the aggregate or materially interfere
with the use thereof in the operation of such business;
(g) Liens securing appeal bonds, supersedeas bonds and other
similar Liens arising in connection with court proceedings (including, without
limitation, surety bonds and letters of credit) or any other instrument serving
a similar purpose; provided, however, that the aggregate amount so secured,
together with the aggregate amount secured pursuant to paragraph (h) of this
Section 6.16, shall not at any time exceed $5,000,000;
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(h) attachments, judgments and other similar Liens arising in
connection with court proceedings; provided, however, that the execution or
other enforcement of such Liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and by appropriate
proceedings and provided, further, that the aggregate amount so secured,
together with the aggregate amount secured pursuant to paragraph (g) of this
Section 6.16, shall not exceed $5,000,000;
(i) Liens on Property of a Subsidiary to secure obligations of
such Subsidiary to the Borrower;
(j) any Lien existing on any Property of any corporation at
the time it becomes a Subsidiary or existing prior to the time of acquisition
upon a Property acquired by the Borrower or any Subsidiary through purchase,
merger or consolidation or otherwise, whether or not assumed by the Borrower or
such Subsidiary; provided, that
(i) such Lien was not placed on such Property in
contemplation of its sale, acquisition or transfer;
(ii) such Property is not or shall not thereby become
encumbered in an amount in excess of the lesser of the cost
thereof or the fair market value thereof at the time such
corporation becomes a Subsidiary or at the time of such
acquisition, as the case may be (as determined in good faith
by the board of directors of the Borrower or of the acquiring
Person); and
(iii) any such Lien shall not encumber any other
Property of the Borrower or any Subsidiary; and
(k) Liens securing Indebtedness not permitted by the foregoing
paragraphs (a) through (j); provided, however, that at no time shall the
aggregate principal amount of (x) all Indebtedness secured by Liens permitted by
this paragraph (k) plus (y) all Indebtedness secured by Liens resulting from any
renewals, extensions, refinancings, refundings, deferrals, restructurings,
amendments or modifications of any Indebtedness secured by Liens permitted by
paragraph (j) of this Section 6.16 exceed 10% of Consolidated Total Assets
determined at such time.
6.17. Year 2000. The Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent or any
Lender, the Borrower will provide a description of the Year 2000 Program,
together with any updates or progress reports with respect thereto.
6.18. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than a Subsidiary of the Borrower) except in
the ordinary course of business and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or
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such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction and except transfers of goods and inventory
between the Borrower and its Affiliates not to exceed $10,000,000 in any Fiscal
Year.
6.19. Mandatory Prepayments. The Borrower shall make all mandatory
prepayments as and when required under the Other Credit Agreement, as in effect
on the initial Borrowing Date.
6.20. Environmental Matters. The Borrower shall and shall cause each of
its Subsidiaries to (a) at all times comply in all material respects with all
applicable Environmental Laws and (b) promptly take any and all necessary
remedial actions in response to the presence, storage, use, disposal,
transportation or Release of any Hazardous Materials on, under or about any real
property owned, leased or operated by the Borrower or any of its Subsidiaries.
In the event that the Borrower or any Subsidiary undertakes any remedial action
with respect to any Hazardous Material on, under or about any real property, the
Borrower or such Subsidiary shall conduct and complete such remedial action in
compliance with all applicable Environmental Laws and in accordance with the
policies, orders and directives of all federal, state and local governmental
authorities, except when the Borrower's or such Subsidiary's liability for such
presence, storage, use, disposal, transportation or Release of any Hazardous
Material is being contested in good faith by the Borrower or such Subsidiary and
appropriate reserves therefor have been established.
6.21. Change in Corporate Structure; Fiscal Year. The Borrower shall
not, nor shall it permit any Subsidiary to, (a) permit any amendment or
modification to be made to its certificate or articles of incorporation or
by-laws which is materially adverse to the interests of the Lenders (provided
that the Borrower shall notify the Agent of any other amendment or modification
of the certificate or articles of incorporation or by-laws of the Borrower or
any Material Domestic Subsidiary as soon as practicable thereafter) or (b)
change its Fiscal Year to end on any date other than December 31 of each year.
6.22. Inconsistent Agreements. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into or be a party to any indenture, agreement,
instrument or other arrangement which, (a) directly or indirectly prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence of the Obligations, the
granting of Liens to secure the Obligations, the provision of the Subsidiary
Guaranty, the amending of the Loan Documents or the ability of any Subsidiary to
(i) pay dividends or make other distributions on its capital stock, (ii) make
loans or advances to the Borrower or (iii) repay loans or advances from the
Borrower or (b) contains any provision which would be violated or breached by
the making of Advances, by the issuance of Facility Letters of Credit or by the
performance by the Borrower or any Subsidiary of any of its obligations under
any Loan Document.
6.23. Financial Covenants. The Borrower on a consolidated basis with
its Subsidiaries shall:
6.23.1. Minimum Net Worth. At all times after the date hereof,
maintain a minimum Consolidated Net Worth at least equal to the sum of (a) 80%
of Consolidated Net Worth as of October 30, 1998 (after giving effect to up to
$150,000,000 of non-cash in-process research
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and development charges) plus (b) 50% of the Borrower's positive Net Income, if
any, for each Fiscal Year ending after the date hereof and on or prior to the
time of determination plus (c) 75% of the proceeds (cash or otherwise) from the
issuance of any capital stock of Borrower after the date hereof.
6.23.2. Leverage Ratio. (a) At all times after the date
hereof and on or prior to the date of the Scheduled Asset Sale, maintain a
Leverage Ratio of not more than the following during each of the following
periods:
Period Ratio
Date hereof through September 30, 1999................... 4.50:1.00
October 1, 1999 through September 30, 2000............... 4.25:1.00
At all times after October 1, 2000....................... 4.00:1.00
(b) At all times after the date of the Scheduled Asset Sale, maintain a
Leverage Ratio of not more than the following during each of the following
periods:
Through September 30, 1999............................... 3.75:1.00
October 1, 1999 through September 30, 2000............... 3.50:1.00
At all times after October 1, 2000....................... 3.25:1.00
6.24. ERISA. The Borrower will (a) fulfill, and cause each member of
the Controlled Group to fulfill, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan, (b) comply, and cause
each member of the Controlled Group to comply, with all applicable provisions of
ERISA and the Code with respect to each Plan, except where such failure or
noncompliance individually or in the aggregate would not have a Material Adverse
Effect and (c) not, and not permit any member of the Controlled Group to, (i)
seek a waiver of the minimum funding standards under ERISA, (ii) terminate or
withdraw from any Plan or (iii) take any other action with respect to any Plan
which would reasonably be expected to entitle the PBGC to terminate, impose
liability in respect of, or cause a trustee to be appointed to administer, any
Plan, unless the actions or events described in the foregoing clauses (i), (ii)
or (iii) individually or in the aggregate would not have a Material Adverse
Effect.
6.25. Completion of Merger. The Borrower shall cause the Merger to
occur at the earliest practicable date and in any event (a) if after
consummation of the Tender Offer the Borrower owns, directly or indirectly, at
least 90% of the common shares of LTI, within five (5) Business Days of such
consummation, (b) if a Merger Agreement has been entered into prior to
consummation of the Tender Offer and Section 6.25(a) is not applicable, within
one hundred twenty (120) days after the initial Advance hereunder or (c)
otherwise, with two hundred seventy (270) days after such initial Advance.
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6.26. Additional Guarantors; Designation of Material Domestic
Subsidiaries. The Borrower shall cause each of its Subsidiaries which becomes a
Material Domestic Subsidiary on or after the date hereof to join in the
Subsidiary Guaranty as a Guarantor pursuant to a joinder agreement in the form
attached to the Subsidiary Guaranty within thirty (30) days of such Person
becoming a Material Domestic Subsidiary; provided, however, that notwithstanding
the foregoing the Borrower shall cause LTI and LTI's Subsidiaries which are
Material Domestic Subsidiaries to join in the Subsidiary Guaranty as Guarantors
pursuant to a joinder agreement in the form attached to the Subsidiary Guaranty
within five (5) Business Days of the consummation of the Merger. The Borrower
shall from time to time designate as a "Material Domestic Subsidiary" one or
more Subsidiaries which would not otherwise constitute a Material Domestic
Subsidiary to the extent necessary to assure that at no time do the Subsidiaries
of the Borrower which are organized under the laws of a jurisdiction located
within the United States and are not Material Domestic Subsidiaries collectively
own or account for more than 15% of the Borrower's and its Subsidiaries': (i)
total assets consolidated as at the end of the most recently completed Fiscal
Year or (ii) income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle
consolidated for the most recently completed Fiscal Year. Such designation shall
be made in a writing delivered to the Agent.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Agent under or
pursuant to this Agreement, any other Loan Document, any Loan, any Facility
Letter of Credit or any certificate or information delivered pursuant to this
Agreement or any other Loan Document shall be false in any material respect on
the date as of which made or deemed made.
7.2. Nonpayment of (a) any principal of any Loan, Note or any
Reimbursement Obligation when due, or (b) any interest upon any Loan, Note or
any facility fee, utilization fee or other fee or obligations under any of the
Loan Documents within five (5) days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, Section 6.3(a), Sections 6.10 through 6.16, Sections 6.18 and 6.19,
Sections 6.21 through 6.23 or Sections 6.25 or 6.26.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within thirty (30) days after written
notice from the Agent or any Lender.
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7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness aggregating in excess of $10,000,000 when due; or the default by
the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement or agreements under which any
such Indebtedness was created or is governed, or the occurrence of any other
event or existence of any other condition, the effect of any of which is to
cause, or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof.
7.6. The Borrower or any of its Subsidiaries shall (a) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section 7.6, (f) fail to contest in good faith any appointment
or proceeding described in Section 7.7 or (g) become unable to pay, not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section 7.6(d)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of thirty (30) consecutive days.
7.8. The Borrower or any of its Subsidiaries shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000 (or multiple judgments or orders for
the payment of an aggregate amount in excess of $10,000,000), which is not
stayed on appeal or otherwise being appropriately contested in good faith and as
to which no enforcement actions have been commenced.
7.9. The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the discovery of any Hazardous
Materials on the leased or owned property of the Borrower or any of its
Subsidiaries, the release by the Borrower or any of its Subsidiaries, or any
other Person of any Hazardous Materials into the environment, or any violation
of any Environmental Law or Environmental Permit, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
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7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $10,000,000 or any Reportable Event shall occur in
connection with any Plan.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $10,000,000 per annum.
7.12. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000.
7.13. Any Change in Control shall occur.
7.14. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement or the Notes) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement or the Notes), which
default or breach continues beyond any period of grace therein provided.
7.15. The Subsidiary Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of the Subsidiary Guaranty, or any Subsidiary party to the
Subsidiary Guaranty shall fail to comply with any of the terms or provisions of
the Subsidiary Guaranty or any Subsidiary party to the Subsidiary Guaranty
denies that it has any further liability under the Subsidiary Guaranty or gives
notice to such effect.
7.16. The representations and warranties set forth in Section 5.15
shall at any time not be true and correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans or issue Facility Letters of Credit hereunder shall automatically
terminate and the Obligations shall immediately become due and payable without
any election or action on the part of the Agent or any Lender. If any other
Default occurs, the Required Lenders (or the Agent with the consent of the
Required Lenders) may terminate
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or suspend the obligations of the Lenders to make Loans or issue Facility
Letters of Credit hereunder, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives. In addition to the foregoing, following the
occurrence and during the continuance of a Default, so long as any Facility
Letter of Credit has not been fully drawn and has not been canceled or expired
by its terms, upon demand by the Agent, the Borrower shall deposit in an account
(the "Letter of Credit Cash Collateral Account") maintained with First Chicago
in the name of the Agent, for the ratable benefit of the Lenders, the Issuer and
the Agent, cash in an amount equal to the aggregate undrawn face amount of all
outstanding Facility Letters of Credit and all fees and other amounts due or
which may become due with respect thereto. The Borrower shall have no control
over funds in the Letter of Credit Cash Collateral Account, which funds shall be
invested by the Agent from time to time in its discretion in certificates of
deposit of First Chicago having a maturity not exceeding thirty (30) days. Such
funds shall be promptly applied by the Agent to reimburse the Issuer for drafts
drawn from time to time under the Facility Letters of Credit. Such funds, if
any, remaining in the Letter of Credit Cash Collateral Account following the
payment of all Obligations in full or the earlier termination of all Defaults
shall, unless the Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to the Borrower.
If, within thirty (30) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender:
(a) Extend the final maturity of any Loan or forgive all or
any portion of the principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees hereunder;
(b) Reduce the percentage specified in the definition of
Required Lenders;
(c) Reduce the amount of or extend the date for the mandatory
payments required under Section 2.1(b);
(d) Extend the Facility Termination Date, permit any Facility
Letter of Credit to have an expiry date beyond a date five (5) Business Days
prior to the Facility Termination Date, or increase the amount of the Commitment
of any Lender hereunder;
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(e) Amend this Section 8.2;
(f) Release any Guarantor from the Subsidiary Guaranty; or
(g) Permit any assignment by the Borrower of its Obligations
or its rights hereunder.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive delivery of the Notes (if any) and
the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter dated
July 6, 1998 in favor of First Chicago and the Arranger.
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9.5. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.7. Expenses; Indemnification. (a) The Borrower shall reimburse the
Agent and the Arranger for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent, which attorneys may be employees of the Agent) paid or
incurred by the Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents. The Borrower also agrees to reimburse
the Agent, the Arranger and the Lenders for any reasonable costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent, the Arranger and the Lenders, which
attorneys may be employees of the Agent, the Arranger or the respective Lenders)
paid or incurred by the Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents.
(b) The Borrower hereby further agrees to indemnify the Agent, the
Arranger and each Lender, its directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Loan hereunder except to the extent that they resulted from the gross negligence
or willful misconduct of the party seeking indemnification. The obligations of
the Borrower under this Section 9.7 shall survive the termination of this
Agreement.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
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operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent, the Arranger nor any Lender
shall have any fiduciary responsibilities to the Borrower. Neither the Agent,
the Arranger nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that neither the Agent,
the Arranger nor any Lender shall have liability to the Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless such losses resulted
from the gross negligence or willful misconduct of the party from which recovery
is sought. Neither the Agent, the Arranger nor any Lender shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees
not to sue for, any special, indirect or consequential damages suffered by the
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which that Lender is a party (in which case prior notice of such
disclosure shall be given to the Borrower to the extent practicable and not
otherwise prohibited under such proceeding), and (vi) permitted by Section 12.4.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
9.13. Disclosure. The Borrower and each Lender hereby (a) acknowledge
and agree that First Chicago and/or its Affiliates from time to time may hold
other investments in, make other loans to or have other relationships with the
Borrower and its Affiliates, and (b) waive any liability of First Chicago or
such Affiliate to the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of First Chicago or
its Affiliates.
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ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. The First National Bank of
Chicago is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the Agent to
act as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article X. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any
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Lien in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower's or any
such guarantor's respective Subsidiaries. The Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two
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or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent. The
obligations of the Lenders under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five (45) days after the retiring Agent gives notice
of its intention to resign. The Agent may be removed at any time with or without
cause by written notice received by the Agent from the Required Lenders, such
removal to be effective on the date specified by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders within
thirty (30) days after the resigning Agent's giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. Notwithstanding the previous sentence, the Agent may
at any time without the consent of the Borrower or any Lender, appoint any of
its Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been
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appointed, the Lenders may perform all the duties of the Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the Lenders. No
successor Agent shall be deemed to be appointed hereunder until such successor
Agent has accepted the appointment. Any such successor Agent shall be a
commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
10.13. Agent's Fee. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent pursuant to that
certain fee letter dated July 6, 1998, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. Documentation Agent; Syndication Agent. None of the Lenders
identified on the facing page or signature pages of this Agreement as the
"documentation agent" or the "syndication agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified as the "documentation agent" or "syndication agent"
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs and for so long as such Default is continuing,
any and all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other Indebtedness
-57-
<PAGE> 65
at any time held or owing by any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (a) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (b) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (b) of this Section, any Lender may at
any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Agent may
treat the Person which made any Loan or which holds any Note as the owner
thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any assignee
or transferee of the rights to any Loan or any Note agrees by acceptance of such
transfer or assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder, transferee or assignee
of the rights to such Loan.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such
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Lender under the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the owner
of its Loans and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and
the Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the
Facility Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment, releases any guarantor of any such Loan or
releases all or substantially all of the collateral, if any, securing
any such Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit C or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof; provided, however, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required.
Such consent shall not be unreasonably withheld or delayed. Each such
assignment shall (unless each of the Borrower and the Agent otherwise
consents) (a) be in an amount not less than the lesser of (i)
$10,000,000 (provided, however, that such amount shall be reduced
dollar for dollar by the amount being simultaneously assigned under the
Other Credit Agreement pursuant
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to subsection (b) of this sentence) or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such
assignment) and (b) assign a like percentage of such Lender's Other
Loans and Commitment (as defined in the Other Credit Agreement) under
the Other Credit Agreement.
12.3.2. Effect; Effective Date. Upon (a) delivery to the Agent
of a notice of assignment, substantially in the form attached as
Exhibit I to Exhibit C (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, and (b) payment of a $3,500 fee to
the Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Loans under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of
the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Loans
assigned to such Purchaser. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Agent and the Borrower shall, if the transferor Lender or the Purchaser
desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(d).
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<PAGE> 68
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to Borrowing Notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (b) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (c) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Agent under Article II shall not
be effective until received.
13.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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<PAGE> 69
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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<PAGE> 70
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
DEXTER CORPORATION
By:____________________________________________________
Print Name:____________________________________________
Title:_________________________________________________
Address:_______________________________________________
_______________________________________________
Attn:________________________________________
Telephone:___________________________________
Fax:_________________________________________
Commitments
THE FIRST NATIONAL BANK OF CHICAGO,
Commitment $_________ Individually and as Agent
By:_______________________________________________
Print Name:_______________________________________
Title:____________________________________________
Address: One First National Plaza
Chicago, Illinois 60670
Attn:___________________________________
Telephone:______________________________
Fax:____________________________________
[OTHER LENDERS]
Aggregate Commitments
<PAGE> 71
PRICING SCHEDULE
<TABLE>
<CAPTION>
APPLICABLE MARGIN AND LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
APPLICABLE FEE RATES STATUS STATUS STATUS STATUS STATUS
-------------------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Applicable Margin (Eurodollar .22% .25% .30% .37% .55%
Rate) and Facility Letter of
Credit Fee
Facility Fee .080% .100% .125% .150% .200%
Utilization Fee
(a) Utilization less than/or equal to 25%* 0% 0% 0% 0% 0%
(b) Utilization greater than 25% but less
than/or equal to 50% .05% .05% .05% .05% .05%
(c) Utilization greater than 50% .10% .10% .10% .10% .10%
</TABLE>
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Moody's Rating is A3 or better or the Borrower's S&P Rating is A- or better.**
"Level II Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status and (ii) the Borrower's Moody's Rating is
Baa1 or better or the Borrower's S&P Rating is BBB+ or better.**
- --------
* "Utilization" means, for any day, a percentage equal to the aggregate
principal amount of Loans, Other Loans and Facility Letters of Credit
outstanding on the close of business (if a Business Day) on such day divided by
the sum on such day of the Aggregate Commitment and the "Aggregate Commitment"
under the Other Agreement.
** In the event that a split occurs between the two ratings, then the rating
corresponding to the higher of the two ratings shall apply. However, if the
split is greater than one level, then the pricing shall be based upon the rating
that is between the two ratings; if the split is greater than two levels, then
the pricing shall be based upon the rating one level above the lowest of the two
ratings. In the event that one of the ratings is BB+ or Ba1 or lower, then the
pricing shall be based upon the lowest of the two ratings.
<PAGE> 72
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's Moody's Rating is Baa2 or better or the Borrower's S&P Rating is BBB
or better.**
"Level IV Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Borrower's Moody's Rating is Baa3 or better or the Borrower's S&P
Rating is BBB- or better.***
"Level V Status" exists at any date if, on such date, the Borrower has
not qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.***
"Moody's Rating" means, at any time, the rating issued by Moody's and
then in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and then in
effect with respect to the Borrower's senior unsecured long-term debt securities
without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as determined
from its then-current Moody's and S&P Ratings. The credit rating in effect on
any date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower has no Moody's Rating or no
S&P Rating, Level IV Status shall exist.
Notwithstanding the foregoing, the Borrower's Status shall be fixed at
Level III from the initial Borrowing Date until and including June 30, 1999.
- --------
*** In the event that a split occurs between the two ratings, then the rating
corresponding to the higher of the two ratings shall apply. However, if the
split is greater than one level, then the pricing shall be based upon the rating
that is between the two ratings; if the split is greater than two levels, then
the pricing shall be based upon the rating one level above the lowest of the two
ratings. In the event that one of the ratings is BB+ or Ba1 or lower, then the
pricing shall be based upon the lowest of the two ratings.
<PAGE> 1
364 DAY Exhibit 4F
$300,000,000
CREDIT AGREEMENT
AMONG
DEXTER CORPORATION
as Borrower,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent
and
THE LENDERS NAMED HEREIN
DATED AS OF
December 15, 1998
ARRANGED BY
FIRST CHICAGO CAPITAL MARKETS, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS................................................................... 1
ARTICLE II
THE CREDITS................................................................... 15
2.1. Advances............................................................. 15
2.2. Ratable Loans........................................................ 15
2.3. Types of Advances.................................................... 15
2.4. Facility and Utilization Fees; Reductions in Aggregate Commitment.... 15
2.5. Minimum Amount of Each Advance....................................... 16
2.6. Optional Principal Payments.......................................... 16
2.7. Mandatory Commitment Reductions...................................... 16
2.8. Method of Selecting Types and Interest Periods for New Advances...... 17
2.9. Conversion and Continuation of Outstanding Advances.................. 17
2.10. Changes in Interest Rate, etc........................................ 18
2.11. Rates Applicable After Default....................................... 18
2.12. Method of Payment.................................................... 18
2.13. Noteless Agreement; Evidence of Indebtedness......................... 19
2.14. Telephonic Notices................................................... 19
2.15. Interest Payment Dates; Interest and Fee Basis....................... 19
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions................................................ 20
2.17. Lending Installations................................................ 20
2.18. Non-Receipt of Funds by the Agent.................................... 20
2.19. Intentionally Omitted................................................ 21
2.20. Extension of Facility Termination Date............................... 21
ARTICLE III
YIELD PROTECTION; TAXES....................................................... 21
3.1. Yield Protection..................................................... 21
3.2. Changes in Capital Adequacy Regulations.............................. 22
3.3. Availability of Types of Advances.................................... 22
3.4. Funding Indemnification.............................................. 23
3.5. Taxes................................................................ 23
3.6. Lender Statements; Survival of Indemnity............................. 24
3.7. Substitution of Lenders.............................................. 25
</TABLE>
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<TABLE>
<S> <C>
ARTICLE IV
CONDITIONS PRECEDENT.......................................................... 25
4.1. Initial Loans........................................................ 25
4.2. Each Future Advance.................................................. 29
ARTICLE V
REPRESENTATIONS AND WARRANTIES................................................ 30
5.1. Existence and Standing............................................... 30
5.2. Authorization and Validity........................................... 30
5.3. No Conflict; Government Consent...................................... 30
5.4. Financial Statements................................................. 31
5.5. Material Adverse Change.............................................. 31
5.6. Taxes................................................................ 31
5.7. Litigation and Contingent Obligations................................ 31
5.8. Subsidiaries......................................................... 32
5.9. ERISA................................................................ 32
5.10. Defaults............................................................. 32
5.11. Regulation U......................................................... 32
5.12. Material Agreements.................................................. 32
5.13. Compliance With Laws................................................. 32
5.14. Ownership of Properties.............................................. 32
5.15. Plan Assets; Prohibited Transactions................................. 33
5.16. Environmental Matters................................................ 33
5.17. Investment Company Act............................................... 33
5.18. Public Utility Holding Company Act................................... 33
5.19. Acquisition Documents................................................ 33
5.20. Year 2000............................................................ 33
5.21. Disclosure........................................................... 34
ARTICLE VI
COVENANTS..................................................................... 34
6.1. Financial Reporting.................................................. 34
6.2. Use of Proceeds...................................................... 35
6.3. Notice of Default.................................................... 36
6.4. Conduct of Business.................................................. 36
6.5. Taxes................................................................ 36
6.6. Insurance............................................................ 36
6.7. Compliance with Laws................................................. 36
6.8. Maintenance of Properties............................................ 36
6.9. Inspection........................................................... 37
6.10. Capital Stock and Dividends.......................................... 37
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
6.11. Indebtedness............................................................ 37
6.12. Merger.................................................................. 37
6.13. Sale of Assets.......................................................... 38
6.14. Investments and Purchases............................................... 38
6.15. Contingent Obligations.................................................. 38
6.16. Liens................................................................... 39
6.17. Year 2000............................................................... 40
6.18. Affiliates.............................................................. 40
6.19. [Intentionally Omitted.]................................................ 41
6.20. Environmental Matters................................................... 41
6.21. Change in Corporate Structure; Fiscal Year.............................. 41
6.22. Inconsistent Agreements................................................. 41
6.23. Financial Covenants..................................................... 41
6.24. ERISA................................................................... 42
6.25. Completion of Merger.................................................... 42
6.26. Additional Guarantors; Designation of Material Domestic Subsidiaries.... 43
ARTICLE VII
DEFAULTS......................................................................... 43
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................... 45
8.1. Acceleration............................................................ 45
8.2. Amendments.............................................................. 46
8.3. Preservation of Rights.................................................. 46
ARTICLE IX
GENERAL PROVISIONS............................................................... 47
9.1. Survival of Representations............................................. 47
9.2. Governmental Regulation................................................. 47
9.3. Headings................................................................ 47
9.4. Entire Agreement........................................................ 47
9.5. Numbers of Documents.................................................... 47
9.6. Several Obligations; Benefits of this Agreement......................... 47
9.7. Expenses; Indemnification............................................... 47
9.8. Accounting.............................................................. 48
9.9. Severability of Provisions.............................................. 48
9.10. Nonliability of Lenders................................................. 48
9.11. Confidentiality......................................................... 49
9.12. Nonreliance............................................................. 49
9.13. Disclosure.............................................................. 49
</TABLE>
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<TABLE>
<S> <C>
ARTICLE X
THE AGENT........................................................................ 49
10.1. Appointment; Nature of Relationship...................................... 49
10.2. Powers................................................................... 49
10.3. General Immunity......................................................... 50
10.4. No Responsibility for Loans, Recitals, etc............................... 50
10.5. Action on Instructions of Lenders........................................ 50
10.6. Employment of Agents and Counsel......................................... 50
10.7. Reliance on Documents; Counsel........................................... 51
10.8. Agent's Reimbursement and Indemnification................................ 51
10.9. Notice of Default........................................................ 51
10.10. Rights as a Lender....................................................... 51
10.11. Lender Credit Decision................................................... 51
10.12. Successor Agent.......................................................... 52
10.13. Agent's Fee.............................................................. 52
10.14. Delegation to Affiliates................................................. 52
10.15. Documentation Agent; Syndication Agent................................... 53
ARTICLE XI
SETOFF; RATABLE PAYMENTS......................................................... 53
11.1. Setoff................................................................... 53
11.2. Ratable Payments......................................................... 53
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................ 53
12.1. Successors and Assigns................................................... 53
12.2. Participations........................................................... 54
12.3. Assignments.............................................................. 55
12.4. Dissemination of Information............................................. 56
12.5. Tax Treatment............................................................ 56
ARTICLE XIII
NOTICES.......................................................................... 56
13.1. Notices.................................................................. 56
13.2. Change of Address........................................................ 56
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
ARTICLE XIV
COUNTERPARTS..................................................................... 57
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL............................................................. 57
15.1. CHOICE OF LAW........................................................... 57
15.2. CONSENT TO JURISDICTION................................................. 57
15.3. WAIVER OF JURY TRIAL.................................................... 57
</TABLE>
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<PAGE> 7
EXHIBITS
Exhibit A (Article 1) Note
Exhibit B (Section 6.1(c)) Compliance Certificate
Exhibit C (Section 12.3.1) Assignment Agreement
Exhibit D (Article I) Subsidiary Guaranty
SCHEDULES
Schedule 5.4 - Borrower Consolidated Pro Forma
Schedule 5.8 - Subsidiaries
Schedule 5.14 - Ownership of Property
Schedule 6.11 - Indebtedness
Schedule 6.14 - Investments
Schedule 6.16 - Liens
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364 DAY CREDIT AGREEMENT
This Credit Agreement, dated as of December 15, 1998, is among DEXTER
CORPORATION, a Connecticut corporation, the Lenders and THE FIRST NATIONAL BANK
OF CHICAGO, individually and as Agent.
R E C I T A L S:
A. The Borrower has requested the Lenders to make financial
accommodations to it in the aggregate principal amount of $300,000,000, the
proceeds of which the Borrower will use (i) in part to finance the cash
consideration to be used to purchase common shares of LTI pursuant to the Tender
Offer and in connection with the Merger Agreement and (ii) for general corporate
purposes; and
B. The Lenders are willing to extend such financial accommodations on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means the acquisition by the Merger Sub of common shares
of LTI pursuant to the Tender Offer and the subsequent Merger.
"Acquisition Documents" means the Offer to Purchase, the Merger
Agreement, the related certificate of ownership and merger filed with the
Delaware Secretary of State to effectuate such merger and the other documents,
certificates and agreements delivered in connection with the Acquisition.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
the Borrower of the same Type and, in the case of Eurodollar Advances, for the
same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause
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the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent appointed pursuant to
Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced or increased from time to time pursuant to the terms
hereof. The initial Aggregate Commitment is $300,000,000.
"Agreement" means this Credit Agreement, as it may be amended, modified
or restated and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the financial statements referred to in Section 5.4;
provided, however, that for purposes of all computations required to be made
with respect to compliance by the Borrower with Section 6.23, such term shall
mean generally accepted accounting principles as in effect on the date hereof,
applied in a manner consistent with those used in preparing the financial
statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Corporate Base Rate for such day, and (b) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance which bears interest at
the Alternate Base Rate.
"Applicable Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing on the Aggregate Commitment
(without regard to usage) at such time pursuant to Section 2.4 as set forth in
the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means, at any time, the percentage
rate per annum at which utilization fees are accruing pursuant to Section 2.4 at
such time as set forth in the Pricing Schedule.
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Authorized Officer" means any of the president, chief financial
officer, treasurer or any vice president of the Borrower, acting singly.
"Bankruptcy Code" means Title 11, United States Code, sections 1 et
seq., as the same may be amended from time to time, and any successor thereto or
replacement therefor which may be hereafter enacted.
"Borrower" means Dexter Corporation, a Connecticut corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (b)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (a) short-term obligations of, or
fully guaranteed by, the United States of America maturing not more than six
months after the date of acquisition thereof, (b) commercial paper maturing not
more than six months after the date of acquisition thereof rated A-1 or better
by S&P or P-1 or better by Moody's, (c) demand deposit accounts maintained in
the ordinary course of business, and (d) certificates of deposit maturing not
more than six months after the date of acquisition thereof issued by and time
deposits maturing not more than six months after the date of acquisition thereof
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $500,000,000;
"Change" is defined in Section 3.2.
"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 25% or more of the outstanding shares of voting stock
of the Borrower, or (b) during any period of 25 consecutive calendar months,
commencing on the date of this Agreement, the ceasing of those individuals (the
"Continuing
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Directors") who (i) were directors of the Borrower on the first day of each such
period or (ii) subsequently became directors of the Borrower and whose initial
election or initial nomination for election subsequent to that date was approved
by a majority of the Continuing Directors then on the board of directors of the
Borrower, to constitute a majority of the board of directors of the Borrower.
"Closing Transactions" is defined in Section 4.1(d).
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted in determining Consolidated Net Income, (i) interest expense, (ii)
expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
all other non-cash charges (including up to $150,000,000 of non-cash in-process
research and development charges incurred in connection with the Acquisition),
(vi) legal, accounting, underwriting, investment banking and other fees and
expenses incurred in connection with the Transaction Documents and (vii)
extraordinary losses incurred other than in the ordinary course of business,
minus, to the extent included in determining Consolidated Net Income,
extraordinary gains realized other than in the ordinary course of business, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time
in accordance with Agreement Accounting Principles.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period in accordance with Agreement Accounting
Principles.
"Consolidated Total Assets" means, at any time, the total amount of
assets at such time (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Borrower and its
Subsidiaries on a consolidated basis, as determined in accordance with Agreement
Accounting Principles.
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"Consolidated Net Worth" means at any time the consolidated common
shareholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time in accordance with Agreement Accounting
Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes. The Corporate Base Rate is a
reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer. First Chicago may make commercial
loans or other loans at rates of interest at, above or below the Corporate Base
Rate.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Environmental Permit" means any material permit, certificate, license,
approval and other authorization prescribed by Environmental Laws and required
for the operation of any material business of the Borrower and its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at the
Eurodollar Rate.
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"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which First Chicago offers to place deposits in U.S. dollars with first-class
banks in the London interbank market at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period, in the
approximate amount of First Chicago's relevant Eurodollar Loan and having a
maturity approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at the applicable
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Request" is defined in Section 2.20.
"Facility Termination Date" means December 13, 1999 or any later date
as may be specified as the Facility Termination Date in accordance with Section
2.20 or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Statements" is defined in Section 5.4.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
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"Fiscal Quarter" means one of the four three-month accounting periods
comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending December
31 of each year.
"Governmental Authority" means any government (foreign or domestic) or
any state or other political subdivision thereof or any governmental body,
agency, authority, department or commission (including without limitation any
taxing authority or political subdivision) or any instrumentality or officer
thereof (including without limitation any court or tribunal) exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any corporation, partnership or other entity
directly or indirectly owned or controlled by or subject to the control of any
of the foregoing.
"Guarantors" means each of the Subsidiaries of Borrower party to the
Subsidiary Guaranty, and their successors and assigns. Initially the Guarantors
shall be Dexter Acquisition Delaware, Inc., Dexter Hysol Aerospace, Inc. and
Dexter Magnetic Technologies, Inc. (formerly Permag Corp.).
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect; or (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens on property now or
hereafter owned or acquired by such Person, (iv) obligations which are evidenced
by notes, acceptances, or other instruments, (v) obligations of such Person to
purchase securities or other property arising out of or in connection with the
sale of the same or substantially similar securities or property, (vi)
Capitalized Lease Obligations, (vii) actual and contingent reimbursement
obligations in respect of Letters of Credit, (viii) net amounts payable under
Rate Hedging Agreements, (ix) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles
would be shown as a liability on the consolidated balance sheet of such Person,
and (x) any material repurchase obligations or liabilities of such Person with
respect to accounts or notes receivable sold with recourse by such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three
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or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, membership interests, notes, debentures or other
securities owned by such Person; any deposit or certificate of deposit owned by
such Person; and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Indebtedness (excluding net amounts payable under Rate Hedging
Agreements) outstanding on such date to (ii) Consolidated EBITDA for the
Borrower's then most-recently ended four Fiscal Quarters, including any Fiscal
Quarters ending on the date of determination.
"Lien" means any security interest, lien (statutory or other),
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan" means, with respect to a Lender, any loan made by such Lender
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranty and the other documents and agreements contemplated hereby and executed
by the Borrower or any Guarantor in favor of the Agent or any Lender.
"LTI" means Life Technologies, Inc., a Delaware corporation.
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"Margin Stock" has the meaning assigned to that term under Regulation
U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole, giving pro forma effect to the
consummation of the Merger, (b) the ability of the Borrower to perform its
obligations under the Loan Documents, (c) the validity or enforceability of any
of the Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder or (d) prior to the Merger, the business, Property, financial
condition or results of operations of LTI.
"Material Domestic Subsidiary" means a direct or indirect Subsidiary of
the Borrower which is organized under the laws of a jurisdiction located within
the United States and
(a) which meets any of the following conditions:
(i) the Borrower's and its other Subsidiaries' investments
in and advances to the Subsidiary exceed 10 percent of the total assets
of the Borrower and its Subsidiaries consolidated as of the end of the
most recently completed Fiscal Year;
(ii) the Borrower's and its other Subsidiaries'
proportionate share of the total assets (after intercompany
eliminations) of the Subsidiary exceeds 10 percent of the total assets
of the Borrower and its Subsidiaries consolidated as of the end of the
most recently completed Fiscal Year; or
(iii) the Borrower's and its other Subsidiaries' equity in
the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds 10 percent of such income of the
Borrower and its Subsidiaries consolidated for the most recently
completed Fiscal Year; or
(b) which has been designated a Material Domestic Subsidiary by the
Borrower pursuant to Section 6.26.
"Merger" means the merger of Merger Sub with and into LTI pursuant to a
Merger Agreement or the "short-form" merger provisions of Section 253 of the
Delaware Corporation Law.
"Merger Agreement" means a merger agreement among the Borrower, LTI and
Merger Sub, in form and substance satisfactory to the Agent.
"Merger Sub" means Dexter Acquisition Delaware, Inc., a Delaware
corporation and Wholly-Owned Subsidiary of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
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"Net Available Proceeds" means (a) with respect to the Scheduled Asset
Sale, the sum of cash or readily marketable cash equivalents received (including
by way of a cash generating sale or discounting of a note or account receivable)
therefrom, whether at the time of such disposition or subsequent thereto, or (b)
with respect to any sale, issuance or incurrence of indebtedness for money
borrowed having a final maturity of greater than one year by the Borrower or any
Subsidiary, cash or readily marketable cash equivalents received therefrom,
whether at the time of such sale, issuance or incurrence or subsequent thereto,
net, in either case, of all reasonable legal, title and recording tax expenses,
commissions and other fees and all costs and expenses reasonably incurred and,
in the case of the Scheduled Asset Sale, net of (i) taxes, (ii) reasonably
estimated indemnity payment obligations and (iii) all payments made by the
Borrower or any of its Subsidiaries on any Indebtedness which is secured by such
assets pursuant to a permitted Lien upon or with respect to such assets or which
must, by the terms of such Lien, in order to obtain a necessary consent to the
Scheduled Asset Sale, or by applicable law, be repaid out of the proceeds from
the Scheduled Asset Sale.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income earned during such period as determined in accordance with Agreement
Accounting Principles.
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit A, including any amendment,
modification, renewal or replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party hereunder arising under any
of the Loan Documents.
"Offer to Purchase" means the Offer to Purchase for Cash by Merger Sub
dated November 2, 1998, as modified through December 7, 1998 pursuant to which
Merger Sub offered to purchase all of the issued and outstanding common shares
of LTI not already owned by the Borrower.
"Other Credit Agreement" means the Five-Year Credit Facility dated as
of the date hereof by and among Dexter Corporation, the lenders named therein
and First Chicago, as agent, as from time to time amended, restated,
supplemented, or otherwise modified.
"Other Loans" means, collectively, all "Loans" under and as defined in
the Other Credit Agreement.
"Other Taxes" is defined in Section 3.5(b).
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"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Forma" is defined in Section 5.4.
"pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the aggregate principal amount
of outstanding Advances.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company or division or line of business thereof, whether through purchase of
assets, merger or otherwise, or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding ownership interests
of a partnership or limited liability company.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, raw material commodity hedges, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants.
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"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and shall include any
successor or other regulation or official interpretation of such Board of
Governors relating to the extension of credit by securities brokers and dealers
for the purpose of purchasing or carrying margin stocks applicable to such
Persons.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors relating to the extension of credit by the specified lenders for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event; provided, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
the aggregate unpaid principal amount of the outstanding Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
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"Response Date" is defined in Section 2.20.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Scheduled Asset Sale" means the sale of the Borrower's Packaging
Coatings business and Dexter S.A.S., a societe anonyme organized under the laws
of the Republic of France.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, association, joint venture, limited liability company or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain Guaranty, substantially the
form of Exhibit D hereto and dated as of the date hereof, duly executed and
delivered by the Borrower's Material Domestic Subsidiaries in favor of the
Agent, on behalf of the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time, including by way of a joinder agreement.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property (a) which represents more than 25% of
Consolidated Total Assets as at the end of the quarter next preceding the date
on which such determination is made, or (b) as to which, in each of the three
Fiscal Years most recently ended prior to the date of determination, (i) the
portion of Consolidated EBITDA which was contributed during each of such Fiscal
Years by such Property, plus (ii) the portions of Consolidated EBITDA which were
contributed during each of such Fiscal Years by all other Property which was
sold, transferred or otherwise disposed of subsequent to the beginning of the
12-month period ending immediately prior to the date of determination, up to and
including the date of determination, constituted more than 25% of Consolidated
EBITDA for any of such three Fiscal Years.
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"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Tender Offer" means the offer to purchase for cash all the common
stock of LTI not already owned by the Borrower made pursuant to the Offer to
Purchase.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or
any other member of the Controlled Group from such Plan during a plan year in
which the Borrower or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was deemed
such under Section 4068(f) of ERISA, (c) the termination of such Plan, the
filing of a notice of intent to terminate such Plan or the treatment of an
amendment of such Plan as a termination under Section 4041 of ERISA, (d) the
institution by the PBGC of proceedings to terminate such Plan or (e) any event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or appointment of a trustee to administer, such Plan.
"Transaction Documents" means the Loan Documents and the Acquisition
Documents.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as an Alternate
Base Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture,
limited liability company or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
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"Year 2000 Program" is defined in Section 5.20.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Advances. (a) From and including the date hereof to but excluding
the Facility Termination Date, each Lender severally (and not jointly) agrees,
on the terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not to exceed in the aggregate at any one
time outstanding the amount of its pro-rata share of the Aggregate Commitment
existing at such time. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow Advances at any time prior to the Facility
Termination Date. The Commitments to lend shall expire on the Facility
Termination Date.
(b) The Borrower hereby agrees that, if at any time as a
result of reductions in the Aggregate Commitment pursuant to Section 2.4(b),
Section 2.7 or otherwise, the aggregate balance of the sum of the Loans exceeds
the Aggregate Commitment, the Borrower shall repay immediately its then
outstanding Loans in such amount as may be necessary to eliminate such excess.
(c) Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.
2.2. Ratable Loans. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
2.3. Types of Advances. The Advances may be Alternate Base Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9.
2.4. Facility and Utilization Fees; Reductions in Aggregate Commitment.
(a) The Borrower agrees to pay to the Agent for the account of each Lender a
facility fee at a per annum rate equal to the Applicable Facility Fee Rate on
the daily average Commitment of such Lender (regardless of usage) from the date
hereof to and including the Facility Termination Date, payable on each Payment
Date hereafter and on the Facility Termination Date. The Borrower also agrees to
pay to the Agent for the pro-rata account of the Lenders a utilization fee for
each day from the date hereof to and including the later of the Facility
Termination Date and the date all Loans are paid in full, such utilization fee
to be equal to the Applicable Utilization Fee Rate for such day multiplied by
the aggregate outstanding principal amount of the Loans on such day, payable on
each Payment Date and the Facility Termination Date.
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(b) The Borrower may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Lenders in a minimum aggregate
amount of $10,000,000 or any integral multiple of $5,000,000 in excess thereof,
upon at least five (5) Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Advances. All accrued facility and
utilization fees shall be payable on the effective date of any termination of
the obligations of the Lenders to make Loans hereunder.
2.5. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $10,000,000 (and in multiples of $1,000,000 if in
excess thereof), and each Alternate Base Rate Advance shall be in the minimum
amount of $5,000,000 (and in multiples of $500,000 if in excess thereof);
provided, however, that (a) any Alternate Base Rate Advance may be in the amount
of the unused Aggregate Commitment and (b) in no event shall more than six (6)
Eurodollar Advances be permitted to be outstanding at any time.
2.6. Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Alternate Base Rate Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral multiple of
$500,000 in excess thereof, any portion of the outstanding Alternate Base Rate
Advances upon notice to the Agent prior to 10:00 a.m. (Chicago time) on the date
of such prepayment. The Borrower may from time to time pay, subject to the
payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000
in excess thereof, any portion of the outstanding Eurodollar Advances upon three
(3) Business Days' prior notice to the Agent.
2.7. Mandatory Commitment Reductions.
(a) The Aggregate Commitment shall be automatically and
permanently reduced in the amounts and at the times set forth below:
(i) concurrently with the receipt thereof by the
Borrower or any Subsidiary, 100% of the aggregate Net Available
Proceeds realized upon the Scheduled Asset Sale; provided that such
reduction shall be required only to the extent needed to reduce the
Aggregate Commitment to $100,000,000; and
(ii) concurrently with the receipt thereof by the
Borrower or any Subsidiary, 100% of the Net Available Proceeds realized
upon the sale, issuance or incurrence of indebtedness for money
borrowed (exclusive of any Loan or Other Loan) having a final maturity
of greater than one year by the Borrower or such Subsidiary; provided
that such reduction shall be required only to the extent needed to
reduce the Aggregate Commitment to $100,000,000.
(b) Contemporaneously with any automatic reductions in the
Aggregate Commitment pursuant to Section 2.7(a), the Borrower shall prepay the
Loans in an amount equal to the lesser of (A) the outstanding principal amount
of Loans and (B) the amount of such reduction;
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provided, however, that no such prepayment shall be required if, at such time,
the Borrower could satisfy the conditions set forth in Section 4.2(b) for the
reborrowing thereof. The preceding sentence shall not affect the obligations of
the Borrower under Section 2.1(b).
(c) Mandatory commitment reductions under this Section 2.7
shall be cumulative and in addition to reductions occurring pursuant to Section
2.4(b).
(d) Any reduction in the Aggregate Commitment pursuant to
this Section 2.7 or otherwise shall ratably reduce the Commitment of each
Lender.
2.8. Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time.
The Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not
later than 10:00 a.m. (Chicago time) at least one (1) Business Day before the
Borrowing Date of each Alternate Base Rate Advance and at least three (3)
Business Days before the Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date of such Advance, which shall be a
Business Day;
(b) the aggregate amount of such Advance;
(c) the Type of Advance selected; and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto, which shall end on or prior to the Facility
Termination Date.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances. Alternate
Base Rate Advances shall continue as Alternate Base Rate Advances unless and
until such Alternate Base Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.6. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into a Alternate Base Rate Advance unless (x)
such Eurodollar Advance is or was repaid in accordance with Section 2.6 or (y)
the Borrower shall have given the Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.5, the Borrower may elect
from time to time to convert all or any part of a Alternate Base Rate Advance
into a Eurodollar Advance. The Borrower shall give the Agent irrevocable notice
(a "Conversion/Continuation Notice") of each conversion of a Alternate Base Rate
Advance into a Eurodollar Advance or continuation of a Eurodollar Advance not
later
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than 10:00 a.m. (Chicago time) at least three (3) Business Days prior to the
date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Alternate Base Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically converted
from a Eurodollar Advance into a Alternate Base Rate Advance pursuant to Section
2.9, to but excluding the date it is paid or is converted into a Eurodollar
Advance pursuant to Section 2.9 hereof, at a rate per annum equal to the
Alternate Base Rate for such day. Changes in the rate of interest on that
portion of any Advance maintained as a Alternate Base Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined by the Agent as applicable to such Eurodollar Advance
based upon the Borrower's selections under Section 2.8 and 2.9 and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default under Section 7.2, 7.6 or 7.7, without any election or action on the
part of the Agent or any Lender, (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each Alternate
Base Rate Advance shall bear interest at a rate per annum equal to the Alternate
Base Rate in effect from time to time plus 2% per annum.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (Chicago time) on the date when
due and shall be applied ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby
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authorized to charge the account of the Borrower maintained with First Chicago
for each payment of principal, interest and fees as it becomes due hereunder.
2.13. Noteless Agreement; Evidence of Indebtedness. (a) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided, however,
that in the event of a conflict between the accounts maintained pursuant to
paragraphs (a) and (b) above, the accounts maintained pursuant to paragraph (a)
above shall be presumed to be correct absent demonstrable error, provided,
further, that the failure of the Agent or any Lender to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare, execute
and deliver to such Lender a Note payable to the order of such Lender in a form
supplied by the Agent. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (a) and (b) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be an
Authorized Officer or other person previously authorized in writing by the
Borrower to take such actions on behalf of the Borrower. The Borrower agrees to
deliver promptly to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Agent and the Lenders, the records of the Agent and
the Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Alternate Base Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof and at
maturity. Interest accrued on each Eurodollar Advance shall
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be payable on the last day of its applicable Interest Period, on any date on
which the Eurodollar Advance is prepaid, whether by acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest shall be calculated
for actual days elapsed on the basis of a 365 (or 366, as applicable) day year
with respect to Alternate Base Rate Advances. Interest with respect to
Eurodollar Advances and fees shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (Chicago time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice and repayment notice received
by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (y) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
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2.19. Intentionally Omitted.
2.20. Extension of Facility Termination Date. The Borrower may request
an extension of the Facility Termination Date by submitting a request for an
extension to the Agent (an "Extension Request") no more than sixty (60) days
prior to each anniversary of the date hereof. The Extension Request must specify
the new Facility Termination Date requested by the Borrower and the date (which
must be at least thirty (30) days after the Extension Request is delivered to
the Agent) as of which the Lenders must respond to the Extension Request (the
"Response Date"). The new Facility Termination Date shall be the date three
hundred and sixty four (364) days after the Facility Termination Date in effect
at the time the Extension Request is received. Promptly upon receipt of an
Extension Request, the Agent shall notify each Lender of the contents thereof
and shall request each Lender to approve the Extension Request. Each Lender,
acting in its sole discretion, may approve or decline to approve such Extension
Request. Each Lender approving the Extension Request shall deliver its written
consent no later than the Response Date. If and only if the written consent of
each of the Lenders is received by the Agent prior to the then effective
Facility Termination Date, the Facility Termination Date specified in the
Extension Request shall become effective on the existing Facility Termination
Date and the Agent shall promptly notify the Borrower and each Lender of the new
Facility Termination Date.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(a) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect
of its Eurodollar Loans, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining
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its Eurodollar Loans or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection
with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated
by reference to the amount of Eurodollar Loans held or
interest received by it, by an amount deemed material by such
Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment in either
case by an amount which such Lender deems to be material, then, within fifteen
(15) days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
applicable Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within fifteen (15) days
of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If (a) any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law and gives notice of such determination to the Borrower
and the Agent, or (b) if the Required Lenders determine that (i) deposits of a
type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance from the
affected Lender, in the case of any occurrence set forth in clause (a), or from
all Lenders, in the case of any occurrence set forth in clause (b), and, in the
case of any occurrence set forth in clause (a), require any affected Eurodollar
Advances to be repaid or converted to Alternate Base Rate Advances, subject to
the payment of any funding indemnification amounts required by Section 3.4.
Until the Lender giving the notice in (a) above has either rescinded such notice
or been
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replaced pursuant to Section 3.7, any Eurodollar Loan which would otherwise have
been required to be made by such Lender shall be made as an Alternate Base Rate
Advance.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by any Lender, the Borrower will indemnify each Lender for any loss
or cost incurred by it resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Advance.
3.5. Taxes. (a) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent the original copy of any receipt obtained by the Borrower
evidencing payment thereof within thirty (30) days after such receipt is
obtained.
(b) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(c) The Borrower hereby agrees to indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within thirty (30) days of the date the Agent or
such Lender makes demand therefor pursuant to Section 3.6.
(d) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten (10) Business Days after the date of this Agreement or,
if later, the date such Lender becomes a party hereto pursuant to Section 12.3,
(i) deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) deliver to each of the Borrower and the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (x) renewals
or additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete,
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and (y) after the occurrence of any event requiring a change in the most recent
forms so delivered by it, such additional forms or amendments thereto as may be
reasonably requested by the Borrower or the Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless 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 or amendment with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.
(e) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (d) above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (d), above, the Borrower shall take such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or
3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
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3.7. Substitution of Lenders. Any Lender (a) claiming any additional
amounts payable pursuant to Section 3.1, 3.2, or 3.5, (b) which gives a notice
described in Section 3.3, or (c) declining to approve of an Extension Request
pursuant to Section 2.20, shall, so long as no Default or Unmatured Default has
occurred and is continuing, upon the written request of the Borrower delivered
to such Lender and the Agent, assign, pursuant to and in accordance with the
provisions of Section 12.3, all of its rights and obligations under this
Agreement and under the Loan Documents to another Lender or to a commercial
bank, other financial institution, commercial finance company or other business
lender selected by the Borrower and reasonably acceptable to the Agent that (a)
has agreed not to claim any additional amounts under Section 3.1, 3.2 or 3.5
with respect to some or all of the costs or regulatory charges that gave rise to
such assigning Lender's claim for such compensation, (b) has not made a
determination of the type described in Section 3.3, or (c) has not declined to
approve of an Extension Request pursuant to Section 2.20, as applicable, in
consideration for (a) the payment by such assignee to such assigning Lender of
the principal of, and interest accrued and unpaid to the date of such assignment
on, the Loans held by such assigning Lender, (b) the payment by the Borrower to
such assigning Lender of any and all other amounts owing to such assigning
Lender under any provision of this Agreement accrued and unpaid to the date of
such assignment and (c) the payment by the Borrower to such assigning Lender of
any amounts which would be payable to such Lender pursuant to Section 3.4 were
such assignment treated as a repayment of such Loans.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Loans. The Lenders shall not be required to make the
initial Advance hereunder unless the Borrower has furnished the following to the
Agent and the other conditions set forth below have been satisfied, in each case
on or before December 31, 1998:
(a) Charter Documents; Good Standing Certificates. Copies of
the articles or certificate of incorporation of the Borrower, together with all
amendments, and a certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation.
(b) By-Laws and Resolutions. Copies, certified by the
Secretary or Assistant Secretary of the Borrower, of its by-laws and of its
Board of Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower is a
party.
(c) Secretary's Certificate. An incumbency certificate,
executed by the Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signature of the officers of the
Borrower authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
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(d) Officer's Certificate. A certificate, dated the date of
the initial Advance hereunder, signed by an Authorized Officer of the Borrower,
in form and substance satisfactory to the Agent, to the effect that: (i) on such
date (both before and after giving effect to the consummation of the Offer to
Purchase, the consummation of the other transactions contemplated hereby (other
than the Merger if it has not occurred as of such date) and the making of the
Loans hereunder (collectively, the "Closing Transactions")) no Default or
Unmatured Default has occurred and is continuing; (ii) no injunction or
temporary restraining order which would prohibit the making of the Loans or
consummation of any of the Closing Transactions, or other litigation which could
reasonably be expected to have a Material Adverse Effect is pending or, to the
best of such Person's knowledge, threatened; (iii) all orders, consents,
approvals, licenses, authorizations, or validations of, or filings, recordings
or registrations with, or exemptions by, any governmental or public body or
authority, or any subdivision thereof, required to make or consummate the
Closing Transactions have been or, prior to the time required, will have been,
obtained, given, filed or taken and are or will be in full force and effect (or
the Borrower has obtained effective judicial relief with respect to the
application thereof) and all applicable waiting periods have expired; (iv) the
Transaction Documents (other than the Merger Agreement if the Board of Directors
of LTI has not approved the Merger) are in full force and effect and no term or
condition thereof has been amended, modified or waived after the execution
thereof in any material respects except with the written consent of the Agent;
(v) all conditions precedent to the consummation of the Tender Offer set forth
in the Offer to Purchase have been satisfied or waived with the consent of the
Agent; (vi) (A) if the board of directors of LTI has approved the Merger, (1)
the Borrower, Merger Sub and LTI have entered into the Merger Agreement; (2) the
Merger Agreement has been approved by all necessary corporate action of the
Borrower's, Merger Sub's and LTI's respective Board of Directors; (3) there has
not occurred any material breach or default under the Merger Agreement; and (4)
there shall have been tendered for purchase pursuant to the Offer to Purchase,
and Merger Sub shall have accepted for payment pursuant to the Offer to
Purchase, at least that number of common shares of LTI which, when added to the
common shares of LTI already owned by the Borrower, enable the Borrower to cause
the Merger to occur without the approval of any other equity holder of LTI; or
(B) if the Board of Directors of LTI has not approved the Merger, the Tender
Offer has been approved by all necessary corporate action of the Borrower's and
Merger Sub's respective Board of Directors, (vii) neither the Borrower nor any
Subsidiary has failed to perform any material obligation or covenant required in
connection with any Closing Transaction to be performed or complied with by it
on or before such date; (viii) each of the representations and warranties set
forth in Article V of this Agreement is true and correct on and as of such date;
and (ix) since June 30, 1998, no event or change has occurred that has caused or
evidences a Material Adverse Effect.
(e) Legal Opinions. (i) A written opinion of Jones, Day,
Reavis & Pogue, counsel to the Borrower and its Subsidiaries, addressed to the
Agent and the Lenders in form and substance acceptable to the Agent and its
counsel, (ii) a written opinion of in-house counsel to the Borrower and its
Subsidiaries, on issues of Connecticut law, addressed to the Agent and Lenders
in form and substance acceptable to the Agent and its counsel, and (iii) to the
extent applicable confirmation from counsel to each party to the Merger
Agreement that the Agent and the Lenders may rely upon any opinion delivered by
it pursuant to the Merger Agreement.
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(f) Notes. Any Notes requested by a Lender pursuant to
Section 2.13 payable to the order of each such requesting Lender.
(g) Loan Documents. Executed originals of this Agreement and
each of the Loan Documents, which shall be in full force and effect, together
with all schedules, exhibits, certificates, instruments, opinions and documents
required to be delivered pursuant hereto and thereto.
(h) Letters of Direction. Written money transfer
instructions with respect to the initial Advances and to future Advances in form
and substance acceptable to the Agent and its counsel addressed to the Agent and
signed by an Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(i) Acquisition Documents. Either (i) if the Board of
Directors of LTI has approved the Merger, a copy of the executed Merger
Agreement and the other Acquisition Documents and any amendments, supplements
and modifications thereto certified as true and complete by an Authorized
Officer of the Borrower or (ii) if the Board of Directors of LTI has not
approved the Merger, a copy of the Offer to Purchase and the other Acquisition
Documents (other than the Merger Agreement) and any amendments, supplements and
modifications thereto certified as true and complete by an Authorized Officer of
the Borrower. The material terms and conditions of the Offer to Purchase and the
Merger Agreement (if the Merger has been approved by the Board of Directors of
LTI), including without limitation, the consideration and structure of the
Acquisition, shall be reasonably acceptable to the Agent.
(j) Solvency Certificate. A written solvency certificate
from the chief financial officer of the Borrower in form and content
satisfactory to the Agent, dated the initial Borrowing Date, with respect to the
value, solvency and other factual information of, or relating to, as the case
may be, the Borrower on a consolidated basis, after giving effect to the Closing
Transactions contemplated by the Transaction Documents.
(k) Financial Statements. The Agent and the Lenders shall
have received not less than five (5) Business Days prior to the initial
Borrowing Date (i) the Pro Forma, which must not be materially less favorable,
in the Agent's reasonable judgment, than the projections previously provided to
the Agent and which must demonstrate, in the Agent's reasonable judgment,
together with all other information then available to the Agent, that the
Borrower and its Subsidiaries can repay their debts and satisfy their respective
other obligations as and when due, and can comply with the financial covenants
set forth herein, (ii) audited financial statements of Borrower and its
Subsidiaries and LTI and its Subsidiaries for the year ended December 31, 1997
and unaudited financial statements of Borrower and its Subsidiaries and LTI and
its Subsidiaries for the Fiscal Quarter ended June 30, 1998, and (iii) such
information as the Agent may reasonably request to confirm the tax, legal and
business assumptions made in the financial statements delivered pursuant to
clauses (i) and (ii) hereof.
(l) Guarantor Charter Documents; Good Standing Certificates.
Copies of the articles or certificates of incorporation of each Guarantor,
together with all amendments thereto, both certified by the appropriate
governmental officer in its jurisdiction of incorporation, together with
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a good standing certificate issued by the Secretary of State of the jurisdiction
of its incorporation and such other jurisdictions as shall be requested by the
Agent.
(m) Guarantor By-Laws and Resolutions. Copies, certified by
the Secretary or Assistant Secretary of each Guarantor, of the by-laws and Board
of Directors' resolutions of such Guarantor (and resolutions of other bodies, if
any are deemed necessary by counsel for the Agent) authorizing the execution,
delivery and performance of the Loan Documents to which each such Guarantor is a
party.
(n) Guarantor Secretary's Certificate. An incumbency
certificate, executed by the Secretary or Assistant Secretary of each Guarantor,
which shall identify by name and title and bear the signature of the officers of
such Guarantor authorized to sign the Loan Documents to which such Guarantor is
party upon which certificate the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.
(o) Lien Searches. Copies of searches of financing
statements filed under the Uniform Commercial Code, together with tax lien and
judgment searches with respect to the assets of the Borrower and its
Subsidiaries, in both cases in such jurisdictions as the Agent may request.
(p) Approvals. Either (i) if the Board of Directors of LTI
has approved the Merger, evidence satisfactory to the Agent that the Borrower's
and LTI's directors shall have approved the Acquisition, that sufficient shares
of LTI shall have been tendered to allow the Borrower, giving effect to the
shares of LTI already owned by the Borrower, to cause a merger between Merger
Sub and LTI to occur without the approval of any other equity holder of LTI, and
all regulatory and legal approvals pertaining to the Acquisition, this Agreement
and the Other Credit Agreement shall have been obtained or (ii) if the Board of
Directors of LTI has not approved the Merger, evidence satisfactory to the Agent
that the Board of Directors of the Borrower shall have approved the Tender Offer
and the financing contemplated hereby. All regulatory and legal approvals
pertaining to the Acquisition, this Agreement and the Other Credit Agreement
shall have been obtained and there shall exist no legal or practical impediment
to the consummation of the Merger in accordance with Section 6.25 (other than
receipt of the requisite number of votes of LTI shareholders).
(q) Litigation. Absence of injunction or temporary
restraining order which, in the reasonable judgment of the Agent, would prohibit
the making of the Loans or the successful completion of the Acquisition or the
Scheduled Asset Sale; and absence of litigation which would reasonably be
expected to result in a Material Adverse Effect.
(r) No Default; No MAC. Since June 30, 1998 there shall have
been no change in the business, Property, financial condition or results of
operations of the Borrower and its Subsidiaries (giving pro forma effect to the
consummation of the Merger) or LTI and its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect.
(s) Year 2000. Information reasonably satisfactory to the
Agent regarding the Year 2000 Programs of the Borrower and its Subsidiaries.
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(t) Other Credit Agreement. The Other Credit Agreement shall
have been executed by the parties thereto and be in full force and effect.
(u) Form U-1. Unless either (i) a Merger Agreement has been
entered into or (ii) after giving effect to the initial Advance and the
consummation of the Tender Offer, the Borrower shall directly or indirectly own
at least 90% of the shares of each outstanding class of equity securities of
LTI, a Federal Reserve Form U-1 duly executed by the Borrower as required by
Regulation U in form and substance satisfactory to the Agent and the Lenders.
(v) Legal. All legal (including tax implications and ERISA,
if applicable) and regulatory matters relating to the Closing Transactions shall
be reasonably satisfactory to the Agent.
(w) Other. Such other documents as the Agent, any Lender or
their counsel may have reasonably requested.
4.2. Each Future Advance. The Lenders shall not be required to make any
Advance (other than an Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Advances) unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default and none
would result from such Advance;
(b) The representations and warranties contained in Article
V are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date;
(c) A Borrowing Notice shall have been properly submitted;
and
(d) All legal matters incident to the making of such Advance
shall be reasonably satisfactory to the Agent and its counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Section 4.2 (a) and (b) have been satisfied. Any Lender may require
a duly completed compliance certificate in substantially the form of Exhibit B
hereto as a condition to making an Advance.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that, both before
and after giving effect to the Closing Transactions:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, partnership (in the case of Subsidiaries only) or limited
liability company (in the case of Subsidiaries only) duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
5.2. Authorization and Validity. The Borrower and each Guarantor has
the power and authority and legal right to execute and deliver the Loan
Documents and other Transaction Documents to which it is a party and to perform
its obligations thereunder. The execution and delivery by the Borrower and each
Guarantor of the Loan Documents and other Transaction Documents to which it is a
party and the performance of its respective obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents and
other Transaction Documents to which the Borrower or any Guarantor is a party
constitute legal, valid and binding obligations of the Borrower or such
Guarantor, as applicable, enforceable against the Borrower or such Guarantor, as
applicable, in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower or any Guarantor of the Loan Documents and other
Transaction Documents to which it is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents and other Transaction Documents,
the borrowings under this Agreement, the payment and performance by the Borrower
of the Obligations or the legality, validity, binding effect or enforceability
of any of the Loan Documents. Neither the Borrower nor any Subsidiary is in
default under or in violation
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of any foreign, federal, state or local law, rule, regulation, order, writ,
judgment, injunction, decree or award binding upon or applicable to the Borrower
or such Subsidiary, in each case the consequences of which default or violation
could reasonably be expected to have a Material Adverse Effect.
5.4. Financial Statements. The December 31, 1997 audited consolidated
financial statements and the June 30, 1998 unaudited consolidated financial
statements of (a) the Borrower and its Subsidiaries and (b) LTI and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present in all material respects the
consolidated financial condition and results of operations of the Borrower and
its Subsidiaries or LTI and its Subsidiaries, as applicable at such date and the
consolidated results of their operations for the periods then ended. The pro
forma balance sheet and related profit and loss statement (the "Pro Forma") of
the Borrower and its Subsidiaries on a consolidated basis as of September 30,
1998 is attached hereto as Schedule 5.4. As of the date of this Agreement, the
Pro Forma is complete and accurate and fairly represents in all material
respects the Borrower's and the Subsidiaries' assets, liabilities, financial
condition and results of operations on a consolidated basis in accordance with
Agreement Accounting Principles, consistently applied, and taking into account
the Closing Transactions, the consummation of the Merger and the other
transactions and actions contemplated by this Agreement, the Loan Documents and
the Transaction Documents.
5.5. Material Adverse Change. Since June 30, 1998 there has been no
change in the business, Property, financial condition or results of operations
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes shown to be due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, the non-payment of which could not reasonably be
expected to have a Material Adverse Effect. As of the date hereof, the United
States income tax returns of the Borrower and its Subsidiaries have been audited
by the Internal Revenue Service through the Fiscal Year ended December 31, 1993
and those of LTI have been audited through the Fiscal Year ended December 31,
1989. No tax liens have been filed and no claims are being asserted with respect
to any such taxes. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Loans. Other than any liability incident to any litigation, arbitration or
proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
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5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $5,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans. Each Plan complies in all
material respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower nor
any other member of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
5.10. Defaults. No Default or Unmatured Default has occurred and is
continuing.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder. Neither the making of any Advance, the use of the
proceeds thereof, nor any other aspect of the financing of the Acquisition, will
violate or be inconsistent with the provisions of Regulation T, Regulation U or
Regulation X.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 5.14, on
the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.16, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Agent as owned by the Borrower and its
Subsidiaries.
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<PAGE> 40
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Acquisition Documents. The Borrower has delivered to the Agent
true, complete and correct copies of the Acquisition Documents (including all
schedules, exhibits, annexes, amendments, supplements, modifications, and all
other material documents delivered pursuant thereto or in connection therewith).
The Acquisition Documents as originally executed and delivered by the parties
thereto have not been amended, waived, supplemented or modified in any material
respect without the consent of the Required Lenders (such consent not to be
unreasonably withheld). Each of the representations and warranties given by the
parties thereto in the Merger Agreement is true and correct in all material
respects as of the date hereof. Neither the Borrower nor any other party thereto
is in default in the performance of or compliance with any provisions thereof.
The Merger Documents are, or if not yet executed, will be when executed, in form
and substance satisfactory for effecting the Merger pursuant to such agreements
under the laws of the State of Delaware.
5.20. Year 2000. The Borrower and its Subsidiaries have made an
assessment of the Year 2000 Issues and have developed a program (the "Year 2000
Program") for remediating the Year 2000 Issues on a timely basis. Based on such
assessment and on the Year 2000 Program neither
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<PAGE> 41
the Borrower nor its Subsidiaries reasonably anticipate that Year 2000 Issues
will have a Material Adverse Effect.
5.21. Disclosure. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of the Loan Documents (taken as
a whole), or (b) representations or warranties of the Borrower or any Subsidiary
contained in this Agreement, the other Loan Documents, the Transaction Documents
or any other document, certificate or written statement furnished to the Agent
or the Lenders by or on behalf of the Borrower or any Subsidiary for use in
connection with the transactions contemplated by this Agreement or the
Transaction Documents, as the case may be, contained, contains or will contain
any untrue statement of a material fact or omitted, omits or will omit to state
a material fact necessary in order to make the statements contained herein or
therein not misleading at the time such representations or warranties were made
in light of the circumstances in which the same were made. The pro forma
financial information contained in such materials is based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, consistently applied,
and will furnish to the Lenders:
(a) As soon as practicable and in any event within one
hundred five (105) days after the close of each of its Fiscal Years, an
unqualified audit report certified by independent certified public accountants,
acceptable to the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period and related statements of income,
retained earnings and cash flows accompanied by a certificate of said
accountants that, in the course of the examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(b) As soon as practicable and in any event within sixty
(60) days after the close of the first three Fiscal Quarters of each of its
Fiscal Years, for itself and its Subsidiaries, consolidated unaudited balance
sheets as at the close of each such period and consolidated statements of
income, retained earnings and cash flows for the period from the beginning of
such Fiscal Year to the end of such quarter, all certified by its chief
financial officer or treasurer.
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<PAGE> 42
(c) Together with the financial statements required by
clauses (a) and (b) above, a compliance certificate in substantially the form of
Exhibit B hereto signed by its chief financial officer or treasurer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(d) Within two hundred seventy (270) days after the close of
each Fiscal Year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under ERISA.
(e) As soon as possible and in any event within ten (10)
days after the Borrower knows that any Termination Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer of the
Borrower, describing said Termination Event and the action which the Borrower
proposes to take with respect thereto.
(f) As soon as possible and in any event within ten (10)
days after receipt by the Borrower, a copy of (i) any written notice, claim,
complaint or order to the effect that the Borrower or any of its Subsidiaries is
or may be liable to any Person as a result of any harm to the environment caused
by the Release by the Borrower, any of its Subsidiaries, or any other Person of
any Hazardous Materials into the environment or requiring that action be taken
to respond to or clean up a Release of Hazardous Materials into the environment,
and (ii) any notice, complaint or citation alleging any violation of any
Environmental Law or Environmental Permit by the Borrower or any of its
Subsidiaries which, in either case, could reasonably be expected to have a
Material Adverse Effect. Within ten (10) days of the Borrower or any Subsidiary
having knowledge of the proposal, enactment or promulgation of any Environmental
Law which could reasonably be expected to have a Material Adverse Effect, the
Borrower shall provide the Agent with written notice thereof.
(g) As soon as possible and in any event within ten (10)
days after the Borrower learns thereof, notice of the assertion or commencement
of any claims, action, suit or proceeding against or affecting the Company or
any Subsidiary which may reasonably be expected to have a Material Adverse
Effect.
(h) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(i) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(j) Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
to, use the proceeds of the Advances to refinance indebtedness existing on the
initial Borrowing Date, for capital expenditures, to provide funds for the
Acquisition and the payment of related fees and
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expenses and to meet the general corporate needs of the Borrower and its
Subsidiaries, including the financing of Purchases permitted hereby and
commercial paper back up. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry any
"margin stock" (as defined in Regulation U) or to finance the Purchase of any
Person in a transaction which has not been approved and recommended by the board
of directors or functional equivalent thereof of such Person.
6.3. Notice of Default. The Borrower will give prompt notice in writing
to the Agent upon any Authorized Officer obtaining knowledge of the occurrence
of (a) any Default or Unmatured Default and (b) of any other event or
development, financial or other, relating specifically to the Borrower or any of
its Subsidiaries (and not of a general economic or political nature), including
without limitation developments with respect to Year 2000 Issues, which could
reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and to do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by applicable law and pay when due all
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to the Agent and any
Lender upon request full information as to the insurance carried; provided, that
nothing herein shall prohibit the Borrower and its Subsidiaries from maintaining
self-insurance in lieu of third party insurance consistent with past practices.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
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<PAGE> 44
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers, directors
and independent public accountants at such reasonable times and intervals as the
Lenders may designate. The Borrower will keep or cause to be kept, and cause
each Subsidiary to keep or cause to be kept, appropriate records and books of
account in which complete entries are to be made reflecting its and their
business and financial transactions, such entries to be made in accordance with
Agreement Accounting Principles consistently applied.
6.10. Capital Stock and Dividends. The Borrower will not, nor will it
permit any Subsidiary to, declare or pay any dividends or make any distributions
on its capital stock (other than dividends payable in its own capital stock) or
redeem, repurchase or otherwise acquire or retire any of its capital stock or
any options or other rights in respect thereof at any time outstanding, except
that (i) any Subsidiary may declare and pay dividends or make distributions to
the Borrower or to a Wholly-Owned Subsidiary of the Borrower and (ii) so long as
no Default or Unmatured Default is pending before or after giving effect to the
declaration or payment of such dividends or repurchase or redemption of such
stock, the Borrower may declare and pay dividends and repurchase and redeem its
capital stock.
6.11. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) the Loans and other Obligations;
(b) Indebtedness existing on the date hereof and described
in Schedule 6.11 hereto;
(c) Rate Hedging Obligations related to the Loans or the
Other Loans;
(d) Other Loans and other Obligations (as defined in the
Other Credit Agreement);
(e) other Indebtedness, before and after giving effect to
which no Default exists under Section 6.23.2 and no more than $75,000,000 of
which is at any time Indebtedness of Subsidiaries.
6.12. Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (a) a
Wholly-Owned Subsidiary may merge into the Borrower or any Wholly-Owned
Subsidiary of the Borrower, (b) the Borrower or any Subsidiary may merge or
consolidate with any other Person so long as the Borrower or such Subsidiary is
the continuing or surviving corporation and, prior to and after giving effect to
such
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<PAGE> 45
merger or consolidation, no Default or Unmatured Default shall exist, and (c)
any Subsidiary may enter into a merger or consolidation as a means of effecting
a disposition permitted by Section 6.13.
6.13. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property, to
any other Person except for (a) the Scheduled Asset Sale, (b) sales of inventory
in the ordinary course of business, and (c) leases, sales, transfers or other
dispositions of its Property that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold or disposed of during the
preceding twelve month period (other than Property leased, sold, transferred or
otherwise disposed of pursuant to (a) or (b) above) does not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
6.14. Investments and Purchases. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including,
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner or member in any partnership, limited liability company or
joint venture, or to make any Purchases, except:
(a) Cash Equivalent Investments;
(b) Existing Investments in Subsidiaries, Investments in
Wholly-Owned Subsidiaries and other Investments in existence on the date hereof
and described in Schedule 6.14 hereto;
(c) Investments to effect the Acquisition pursuant to the
terms of the Merger Agreement and/or the Offer to Purchase (including open
market and privately negotiated purchases as described therein) without waiver
of any material condition thereof;
(d) Investments incurred in order to consummate other
Purchases; provided that (i) the Borrower provides the Agent with a certificate
at least five (5) Business Days prior to the consummation of such Purchase
evidencing that, after giving effect to such Purchase, no Default or Unmatured
Default would exist under Section 6.23.2 as of such date (as determined on a pro
forma basis as of the last day of the preceding fiscal quarter) and (ii) the
Person or business which is the subject of such Purchase is in the same or
similar line of business as the Borrower and its Subsidiaries; and
(e) Other Investments made after the date hereof after
giving effect to which the aggregate amount of all such other Investments
(calculated on the basis of the initial amount of each such other Investment)
does not exceed 25% of Consolidated Total Assets as at the end of the quarter
next preceding the date on which such determination is made provided that no
more than 10% of Consolidated Total Assets as at the end of the quarter next
preceding the date on which such determination is made may be Investments in
Persons which are not Subsidiaries.
6.15. Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation, except (a)
by endorsement of instruments for deposit or collection in the ordinary course
of business, (b) Contingent Obligations in respect of
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"Facility Letters of Credit" (as defined in the Other Credit Agreement), (c) the
Subsidiary Guaranty, (d) Contingent Obligations in respect of underlying
obligations of a Subsidiary and (e) other Contingent Obligations created in the
ordinary course of the Borrower's or its Subsidiaries' business of Indebtedness
at no time exceeding $25,000,000 in aggregate principal amount.
6.16. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than sixty (60) days
past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(e) Liens existing on the date hereof and described in
Schedule 6.16 hereto;
(f) other Liens (including, without limitation, Liens
imposed pursuant to any Environmental Laws) incidental to the conduct of the
business or the ownership of the Property of the Borrower or any Subsidiary
(other than those specified in paragraphs (g) and (h) of this Section 6.16)
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate materially
detract from the value of such Property in the aggregate or materially interfere
with the use thereof in the operation of such business;
(g) Liens securing appeal bonds, supersedes bonds and other
similar Liens arising in connection with court proceedings (including, without
limitation, surety bonds and letters of credit) or any other instrument serving
a similar purpose; provided, however, that the aggregate amount so secured,
together with the aggregate amount secured pursuant to paragraph (h) of this
Section 6.16, shall not at any time exceed $5,000,000;
(h) attachments, judgments and other similar Liens arising
in connection with court proceedings; provided, however, that the execution or
other enforcement of such Liens is
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effectively stayed and the claims secured thereby are being actively contested
in good faith and by appropriate proceedings and provided, further, that the
aggregate amount so secured, together with the aggregate amount secured pursuant
to paragraph (g) of this Section 6.16, shall not exceed $5,000,000;
(i) Liens on Property of a Subsidiary to secure obligations
of such Subsidiary to the Borrower;
(j) any Lien existing on any Property of any corporation at
the time it becomes a Subsidiary or existing prior to the time of acquisition
upon a Property acquired by the Borrower or any Subsidiary through purchase,
merger or consolidation or otherwise, whether or not assumed by the Borrower or
such Subsidiary; provided, that
(i) such Lien was not placed on such Property in
contemplation of its sale, acquisition or transfer;
(ii) such Property is not or shall not thereby become
encumbered in an amount in excess of the lesser of the cost thereof or
the fair market value thereof at the time such corporation becomes a
Subsidiary or at the time of such acquisition, as the case may be (as
determined in good faith by the board of directors of the Borrower or
of the acquiring Person); and
(iii) any such Lien shall not encumber any other
Property of the Borrower or any Subsidiary; and
(k) Liens securing Indebtedness not permitted by the
foregoing paragraphs (a) through (j); provided, however, that at no time shall
the aggregate principal amount of (x) all Indebtedness secured by Liens
permitted by this paragraph (k) plus (y) all Indebtedness secured by Liens
resulting from any renewals, extensions, refinancings, refundings, deferrals,
restructurings, amendments or modifications of any Indebtedness secured by Liens
permitted by paragraph (j) of this Section 6.16 exceed 10% of Consolidated Total
Assets determined at such time.
6.17. Year 2000. The Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent or any
Lender, the Borrower will provide a description of the Year 2000 Program,
together with any updates or progress reports with respect thereto.
6.18. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than a Subsidiary of the Borrower) except in
the ordinary course of business and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms-length
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transaction and except transfers of goods and inventory between the Borrower and
its Affiliates not to exceed $10,000,000 in any Fiscal Year.
6.19. [Intentionally Omitted.]
6.20. Environmental Matters. The Borrower shall and shall cause each of
its Subsidiaries to (a) at all times comply in all material respects with all
applicable Environmental Laws and (b) promptly take any and all necessary
remedial actions in response to the presence, storage, use, disposal,
transportation or Release of any Hazardous Materials on, under or about any real
property owned, leased or operated by the Borrower or any of its Subsidiaries.
In the event that the Borrower or any Subsidiary undertakes any remedial action
with respect to any Hazardous Material on, under or about any real property, the
Borrower or such Subsidiary shall conduct and complete such remedial action in
compliance with all applicable Environmental Laws and in accordance with the
policies, orders and directives of all federal, state and local governmental
authorities, except when the Borrower's or such Subsidiary's liability for such
presence, storage, use, disposal, transportation or Release of any Hazardous
Material is being contested in good faith by the Borrower or such Subsidiary and
appropriate reserves therefor have been established.
6.21. Change in Corporate Structure; Fiscal Year. The Borrower shall
not, nor shall it permit any Subsidiary to, (a) permit any amendment or
modification to be made to its certificate or articles of incorporation or
by-laws which is materially adverse to the interests of the Lenders (provided
that the Borrower shall notify the Agent of any other amendment or modification
of the certificate or articles of incorporation or by-laws of the Borrower or
any Material Domestic Subsidiary as soon as practicable thereafter) or (b)
change its Fiscal Year to end on any date other than December 31 of each year.
6.22. Inconsistent Agreements. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into or be party to any indenture, agreement,
instrument or other arrangement which, (a) directly or indirectly prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence of the Obligations, the
granting of Liens to secure the Obligations, the provision of the Subsidiary
Guaranty, the amending of the Loan Documents or the ability of any Subsidiary to
(i) pay dividends or make other distributions on its capital stock, (ii) make
loans or advances to the Borrower or (iii) repay loans or advances from the
Borrower or (b) contains any provision which would be violated or breached by
the making of Advances or by the performance by the Borrower or any Subsidiary
of any of its obligations under any Loan Document.
6.23. Financial Covenants. The Borrower on a consolidated basis with
its Subsidiaries shall:
6.23.1. Minimum Net Worth. At all times after the date
hereof, maintain a minimum Consolidated Net Worth at least equal to the sum of
(a) 80% of Consolidated Net Worth as of October 30, 1998 (after giving effect to
up to $150,000,000 of non-cash in-process research and development charges) plus
(b) 50% of the Borrower's positive Net Income, if any, for each Fiscal Year
ending after the date hereof and on or prior to the time of determination plus
(c) 75%
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of the proceeds (cash or otherwise) from the issuance of any capital stock of
Borrower after the date hereof.
6.23.2. Leverage Ratio. (a) At all times after the date
hereof and on or prior to the date of the Scheduled Asset Sale, maintain a
Leverage Ratio of not more than the following during each of the following
periods (to the extent this Agreement remains in effect during such period):
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Date hereof through September 30, 1999......... 4.50:1.00
October 1, 1999 through September 30, 2000..... 4.25:1.00
At all times after October 1, 2000............. 4.00:1.00
</TABLE>
(b) At all times after the date of the Scheduled Asset Sale, maintain a
Leverage Ratio of not more than the following during each of the following
periods (to the extent this Agreement remains in effect during such period):
<TABLE>
<S> <C>
Through September 30, 1999..................... 3.75:1.00
October 1, 1999 through September 30, 2000..... 3.50:1.00
At all times after October 1, 2000............. 3.25:1.00
</TABLE>
6.24. ERISA. The Borrower will (a) fulfill, and cause each member of
the Controlled Group to fulfill, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan, (b) comply, and cause
each member of the Controlled Group to comply, with all applicable provisions of
ERISA and the Code with respect to each Plan, except where such failure or
noncompliance individually or in the aggregate would not have a Material Adverse
Effect and (c) not, and not permit any member of the Controlled Group to, (i)
seek a waiver of the minimum funding standards under ERISA, (ii) terminate or
withdraw from any Plan or (iii) take any other action with respect to any Plan
which would reasonably be expected to entitle the PBGC to terminate, impose
liability in respect of, or cause a trustee to be appointed to administer, any
Plan, unless the actions or events described in the foregoing clauses (i), (ii)
or (iii) individually or in the aggregate would not have a Material Adverse
Effect.
6.25. Completion of Merger. The Borrower shall cause the Merger to
occur at the earliest practicable date and in any event (a) if after
consummation of the Tender Offer the Borrower owns, directly or indirectly, at
least 90% of the common shares of LTI, within five (5) Business Days of such
consummation, (b) if a Merger Agreement has been entered into prior to
consummation of the Tender Offer and Section 6.25(a) is not applicable, within
one hundred twenty (120) days after the initial Advance hereunder or (c)
otherwise, within two hundred seventy (270) days after such initial Advance.
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<PAGE> 50
6.26. Additional Guarantors; Designation of Material Domestic
Subsidiaries. The Borrower shall cause each of its Subsidiaries which becomes a
Material Domestic Subsidiary on or after the date hereof to join in the
Subsidiary Guaranty as a Guarantor pursuant to a joinder agreement in the form
attached to the Subsidiary Guaranty within thirty (30) days of such Person
becoming a Material Domestic Subsidiary; provided, however, that notwithstanding
the foregoing the Borrower shall cause LTI and LTI's Subsidiaries which are
Material Domestic Subsidiaries to join in the Subsidiary Guaranty as Guarantors
pursuant to a joinder agreement in the form attached to the Subsidiary Guaranty
within five (5) Business Days of the consummation of the Merger. The Borrower
shall from time to time designate as a "Material Domestic Subsidiary" one or
more Subsidiaries which would not otherwise constitute a Material Domestic
Subsidiary to the extent necessary to assure that at no time do the Subsidiaries
of the Borrower which are organized under the laws of a jurisdiction located
within the United States and are not Material Domestic Subsidiaries collectively
own or account for more than 15% of the Borrower's and its Subsidiaries' (i)
total assets consolidated as at the end of the most recently completed Fiscal
Year or (ii) income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle
consolidated for the most recently completed Fiscal Year. Such designation shall
be made in a writing delivered to the Agent.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Agent under or
pursuant to this Agreement, any other Loan Document, any Loan or any certificate
or information delivered pursuant to this Agreement or any other Loan Document
shall be false in any material respect on the date as of which made or deemed
made.
7.2. Nonpayment of (a) any principal of any Loan or Note when due, or
(b) any interest upon any Loan or Note or any facility fee utilization fee or
other fee or obligations under any of the Loan Documents within five (5) days
after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, Section 6.3(a), Sections 6.10 through 6.16, Section 6.18, Sections
6.21 through 6.23 or Sections 6.25 or 6.26.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of
this Agreement which is not remedied within thirty (30) days after written
notice from the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness aggregating in excess of $10,000,000 when due; or the default by
the Borrower or any of its
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Subsidiaries in the performance of any term, provision or condition contained in
any agreement or agreements under which any such Indebtedness was created or is
governed, or the occurrence of any other event or existence of any other
condition, the effect of any of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated maturity
thereof.
7.6. The Borrower or any of its Subsidiaries shall (a) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section 7.6, (f) fail to contest in good faith any appointment
or proceeding described in Section 7.7 or (g) become unable to pay, not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section 7.6(d)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of thirty (30) consecutive days.
7.8. The Borrower or any of its Subsidiaries shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000 (or multiple judgments or orders for
the payment of an aggregate amount in excess of $10,000,000), which is not
stayed on appeal or otherwise being appropriately contested in good faith and as
to which no enforcement actions have been commenced.
7.9. The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the discovery of any Hazardous
Materials on the leased or owned property of the Borrower or any of its
Subsidiaries, the release by the Borrower or any of its Subsidiaries, or any
other Person of any Hazardous Materials into the environment, or any violation
of any Environmental Law or Environmental Permit, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $10,000,000 or any Reportable Event shall occur in
connection with any Plan.
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7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $10,000,000 per annum.
7.12. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000.
7.13. Any Change in Control shall occur.
7.14. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement or the Notes) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement or the Notes), which
default or breach continues beyond any period of grace therein provided.
7.15. The Subsidiary Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of the Subsidiary Guaranty, or any Subsidiary party to the
Subsidiary Guaranty shall fail to comply with any of the terms or provisions of
the Subsidiary Guaranty or any Subsidiary party to the Subsidiary Guaranty
denies that it has any further liability under the Subsidiary Guaranty or gives
notice to such effect.
7.16. The representations and warranties set forth in Section 5.15
shall at any time not be true and correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender. If any other Default occurs, the Required Lenders (or
the Agent with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the
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Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within thirty (30) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender:
(a) Extend the final maturity of any Loan or forgive all or
any portion of the principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees hereunder;
(b) Reduce the percentage specified in the definition of
Required Lenders;
(c) Reduce the amount of or extend the date for the mandatory
payments required under Section 2.1(b);
(d) Extend the Facility Termination Date, or increase the
amount of the Commitment of any Lender hereunder;
(e) Amend this Section 8.2;
(f) Release any Guarantor from the Subsidiary Guaranty; or
(g) Permit any assignment by the Borrower of its Obligations
or its rights hereunder.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not
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preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive delivery of the Notes (if any) and
the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter dated
July 6, 1998 in favor of First Chicago and the Arranger.
9.5. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.7. Expenses; Indemnification. (a) The Borrower shall reimburse the
Agent and the Arranger for any reasonable costs, internal charges and
out-of-pocket expenses (including
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reasonable attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, the Arranger and the
Lenders for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent, the Arranger and the Lenders, which attorneys may be employees of the
Agent, the Arranger or the respective Lenders) paid or incurred by the Agent,
the Arranger or any Lender in connection with the collection and enforcement of
the Loan Documents.
(b) The Borrower hereby further agrees to indemnify the Agent, the
Arranger and each Lender, its directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Loan hereunder except to the extent that they resulted from the gross negligence
or willful misconduct of the party seeking indemnification. The obligations of
the Borrower under this Section 9.7 shall survive the termination of this
Agreement.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent, the Arranger nor any Lender
shall have any fiduciary responsibilities to the Borrower. Neither the Agent,
the Arranger nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that neither the Agent,
the Arranger nor any Lender shall have liability to the Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless such losses resulted
from the gross negligence or willful misconduct of the party from which recovery
is sought. Neither the Agent, the Arranger nor any Lender shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees
not to sue for, any special, indirect or consequential damages suffered by the
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
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9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which that Lender is a party (in which case prior notice of such
disclosure shall be given to the Borrower to the extent practicable and not
otherwise prohibited under such proceeding), and (vi) permitted by Section 12.4.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
9.13. Disclosure. The Borrower and each Lender hereby (a) acknowledge
and agree that First Chicago and/or its Affiliates from time to time may hold
other investments in, make other loans to or have other relationships with the
Borrower and its Affiliates, and (b) waive any liability of First Chicago or
such Affiliate to the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of First Chicago or
its Affiliates.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. The First National Bank of
Chicago is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the Agent to
act as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article X. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with
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such powers as are reasonably incidental thereto. The Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
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10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Agent. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial
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statements prepared by the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the other Loan Documents. Each Lender also acknowledges
that it will, independently and without reliance upon the Agent, the Arranger or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five (45) days after the retiring Agent gives notice
of its intention to resign. The Agent may be removed at any time with or without
cause by written notice received by the Agent from the Required Lenders, such
removal to be effective on the date specified by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders within
thirty (30) days after the resigning Agent's giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. Notwithstanding the previous sentence, the Agent may
at any time without the consent of the Borrower or any Lender, appoint any of
its Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
10.13. Agent's Fee. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent pursuant to that
certain fee letter dated July 6, 1998, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this
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Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which the Agent is entitled under Articles IX
and X.
10.15. Documentation Agent; Syndication Agent. None of the Lenders
identified on the facing page or signature pages of this Agreement as the
"documentation agent" or the "syndication agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified as the "documentation agent" or "syndication agent"
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs and for so long as such Default is continuing,
any and all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other Indebtedness at
any time held or owing by any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (a) the
Borrower shall not have the right to assign its rights or
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obligations under the Loan Documents and (b) any assignment by any Lender must
be made in compliance with Section 12.3. Notwithstanding clause (b) of this
Section, any Lender may at any time, without the consent of the Borrower or the
Agent, assign all or any portion of its rights under this Agreement and any Note
to a Federal Reserve Bank; provided, however, that no such assignment to a
Federal Reserve Bank shall release the transferor Lender from its obligations
hereunder. The Agent may treat the Person which made any Loan or which holds any
Note as the owner thereof for all purposes hereof unless and until such Person
complies with Section 12.3 in the case of an assignment thereof or, in the case
of any other transfer, a written notice of the transfer is filed with the Agent.
Any assignee or transferee of the rights to any Loan or any Note agrees by
acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the owner of its Loans and the holder of any Note
issued to it in evidence thereof for all purposes under the Loan
Documents, all amounts payable by the Borrower under this Agreement
shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the
Facility Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment, releases any guarantor of any such Loan or
releases all or substantially all of the collateral, if any, securing
any such Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents,
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provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold
to each Participant. The Lenders agree to share with each Participant,
and each Participant, by exercising the right of setoff provided in
Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a
Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit C or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof; provided, however, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required.
Such consent shall not be unreasonably withheld or delayed. Each such
assignment shall (unless each of the Borrower and the Agent otherwise
consents) (a) be in an amount not less than the lesser of (i)
$10,000,000 (provided, however, that such amount shall be reduced
dollar for dollar by the amount being simultaneously assigned under the
Other Credit Agreement pursuant to subsection (b) of this sentence) or
(ii) the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment) and (b) assign a like
percentage of such Lender's Other Loans and Commitment (as defined in
the Other Credit Agreement) under the Other Credit Agreement.
12.3.2. Effect; Effective Date. Upon (a) delivery to the Agent
of a notice of assignment, substantially in the form attached as
Exhibit I to Exhibit C (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, and (b) payment of a $3,500 fee to
the Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and Loans under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of
the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Loans
assigned to such Purchaser. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Agent and the Borrower shall, if the transferor Lender or the Purchaser
desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes
are issued
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to such transferor Lender and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(d).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to Borrowing Notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (b) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (c) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Agent under Article II shall not
be effective until received.
13.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
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ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
DEXTER CORPORATION
By:__________________________________________
Print Name:__________________________________
Title:_______________________________________
Address:_____________________________________
_____________________________________
Attn:_______________________________
Telephone:__________________________
Fax:________________________________
Commitments
THE FIRST NATIONAL BANK OF CHICAGO,
Commitment $_______ Individually and as Agent
By:__________________________________________
Print Name:__________________________________
Title:_______________________________________
Address: One First National Plaza
Chicago, Illinois 60670
Attn:_______________________________
Telephone:__________________________
Fax:________________________________
[OTHER LENDERS]
Aggregate Commitments
<PAGE> 66
PRICING SCHEDULE
<TABLE>
<CAPTION>
====================================================================================================================================
APPLICABLE MARGIN AND LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
APPLICABLE FEE RATES STATUS STATUS STATUS STATUS STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Eurodollar Rate .24% .27% .325% .40% .575%
- ------------------------------------------------------------------------------------------------------------------------------------
Facility Fee .060% .080% .100% .125% .175%
- ------------------------------------------------------------------------------------------------------------------------------------
Utilization Fee
- ------------------------------------------------------------------------------------------------------------------------------------
(a) Utilization less than or equal to 25%* 0% 0% 0% 0% 0%
- ------------------------------------------------------------------------------------------------------------------------------------
(b) Utilization greater than 25% but less than or equal to 50% .05% .05% .05% .05% .05%
- ------------------------------------------------------------------------------------------------------------------------------------
(c) Utilization greater than 50% .10% .10% .10% .10% .10%
====================================================================================================================================
</TABLE>
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Moody's Rating is A3 or better or the Borrower's S&P Rating is A- or better.**
"Level II Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status and (ii) the Borrower's Moody's Rating is
Baa1 or better or the Borrower's S&P Rating is BBB+ or better.**
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's Moody's Rating is Baa2 or better or the Borrower's S&P Rating is BBB
or better.**
- ----------------
* "Utilization" means, for any day, a percentage equal to the aggregate
principal amount of Loans, Other Loans and "Facility Letters of Credit" (as
defined in the Other Credit Agreement) outstanding on the close of business (if
a Business Day) on such day divided by the sum on such day of the Aggregate
Commitment and the "Aggregate Commitment" under the Other Agreement.
** In the event that a split occurs between the two ratings, then the rating
corresponding to the higher of the two ratings shall apply. However, if the
split is greater than one level, then the pricing shall be based upon the
average of the two ratings; if the split is greater than two levels, then the
pricing shall be based upon the rating one level above the lowest of the two
ratings. In the event that one of the ratings is BB+ or Ba1 or lower, then the
pricing shall be based upon the lowest of the two ratings.
<PAGE> 67
"Level IV Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Borrower's Moody's Rating is Baa3 or better or the Borrower's S&P
Rating is BBB- or better.***
"Level V Status" exists at any date if, on such date, the Borrower has
not qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.***
"Moody's Rating" means, at any time, the rating issued by Moody's and
then in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and then in
effect with respect to the Borrower's senior unsecured long-term debt securities
without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as determined
from its then-current Moody's and S&P Ratings. The credit rating in effect on
any date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower has no Moody's Rating or no
S&P Rating, Level V Status shall exist.
Notwithstanding the foregoing, the Borrower's Status shall be fixed at
Level III from the initial Borrowing Date until and including June 30, 1999.
- ----------------
*** In the event that a split occurs between the two ratings, then the rating
corresponding to the higher of the two ratings shall apply. However, if the
split is greater than one level, then the pricing shall be based upon the
average of the two ratings; if the split is greater than two levels, then the
pricing shall be based upon the rating one level above the lowest of the two
ratings. In the event that one of the ratings is BB+ or Ba1 or lower, then the
pricing shall be based upon the lowest of the two ratings.
