<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------------------
Amendment No. 5
to
Schedule 14D-1/A
Tender Offer Statement Pursuant to
Section 14(d)(1) of the
Securities and Exchange Act of 1934
and
Schedule 13D/A
under the Securities Exchange Act of 1934
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LUMEN TECHNOLOGIES, INC.
-----------------------------------------------------
(Name of Subject Company)
EG&G, INC.
LIGHTHOUSE WESTON CORP.
-----------------------------------------------------
(Bidders)
Common Stock, Par Value $0.01 Per Share
-----------------------------------------------------
(Title of Class of Securities)
550242 10 1
-----------------------------------------------------
(CUSIP Number of Class of Securities)
Murray Gross, Esq.
Senior Vice President, General Counsel and Clerk
EG&G, Inc.
45 William Street
Wellesley, Massachusetts 02481
(781) 237-5100
Copy to:
David E. Redlick, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
- -------------------------------------------------------------------------------
(Names, Addresses, and Telephone Numbers of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
-----------------------------------------------------
<PAGE> 2
This Amendment No. 5 to Tender Offer Statement on Schedule 14D-1/A
("Amendment No. 5") relates to the offer by Lighthouse Weston Corp. (the
"Purchaser"), a Delaware corporation and a wholly owned subsidiary of EG&G,
Inc., a Massachusetts corporation (the "Parent"), to purchase all outstanding
shares of common stock, par value $0.01 per share (the "Shares"), of Lumen
Technologies, Inc., a Delaware corporation (the "Company"), at a price of $7.75
per share, net to the seller in cash, without interest thereon, upon the terms
and subject to the conditions set forth in the Offer to Purchase (the "Offer to
Purchase") and in the related Letter of Transmittal (which together with any
amendments or supplements thereto, collectively constitute the "Offer"), copies
of which are attached as Exhibits (a)(1) and (a)(2), respectively, to the Tender
Offer Statement on Schedule 14D-1 originally filed with the Securities and
Exchange Commission on October 27, 1998, as amended by Amendment No. 1 thereto
dated October 30, 1998, Amendment No. 2 thereto dated November 6, 1998,
Amendment No. 3 thereto dated November 10, 1998, and Amendment No. 4 thereto
dated November 23, 1998 (the "Original Statement").
The Original Statement is amended as follows:
Item 4. Source and Amount of Funds
The information set forth in Item 4 is hereby amended and supplemented
by substituting sections (a) and (b) with the following:
(a) and (b) The information set forth in Section 9 ("Source and Amount
of Funds") of the Offer to Purchase is amended to read in its entirety as
follows:
The total amount of funds required by the Purchaser to purchase
23,822,931 Shares pursuant to the Offer (which represents all issued and
outstanding Shares and all Shares issuable upon the exercise of outstanding
options, but excludes any Shares issuable upon conversion of the Convertible
Notes), and to pay related fees and expenses is estimated to be approximately
$185.5 million. The Purchaser will obtain such funds from the Parent. The Parent
intends to obtain such funds from its available corporate funds, from the
issuance of commercial paper and from borrowings under one or more of its credit
agreements. The obtaining of financing is not a condition to the Offer or the
Merger.
The Parent has the following three credit agreements (collectively, the
"Credit Facilities"): (i) a $100 million 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of March 6, 1998, as most recently
amended as of November 20, 1998, among the Parent, the lenders named therein and
The Chase Manhattan Bank as administrative agent (the "364-Day Facility"); (ii)
a $100 million Five-Year Competitive Advance and Revolving Credit Facility
Agreement dated as of March 21, 1994, as most recently amended as of November
20, 1998, among the Parent, the lenders named therein and The Chase Manhattan
Bank as administrative agent (the "Five-Year Facility"); and (iii) a $100
million Competitive Advance and Revolving Credit Facility Agreement dated as of
November 23, 1998, among the Parent, the lenders named therein and The Chase
Manhattan Bank as administrative agent (the "Third Facility"). Advances made
under the 364-Day Facility mature in March 1999. The Five-Year Facility has a
termination date of March 2002. The Third Facility has a termination date of
March 1999 and loans outstanding on the termination date must be repaid on or
before March 2, 2000. All three Credit Facilities provide for revolving and
competitive rate loans. Revolving loans either bear interest at a rate ranging
from 23 to 75 basis points per annum over LIBOR, based upon the credit rating of
the Parent, or at a rate set at the greater of (a) the Prime Rate (as defined in
the Credit Facilities) and (b) the Federal Funds Effective Rate (as defined in
the Credit Facilities) plus
<PAGE> 3
50 basis points per annum. Revolving loans under any Credit Facility bear
additional interest at a rate of 12.5 basis points per annum on any day on which
the sum of the outstanding aggregate principal amount of obligations under such
Credit Facility exceeds $33 million. Each of the Credit Facilities carries a
facility fee ranging from 5 to 30 basis points per annum, based upon the credit
rating of the Parent. Each of the Credit Facilities is unsecured and contains a
number of non-financial and financial covenants.
As of December 3, 1998, the Parent had committed $15 million of the
available funds under the Credit Facilities to back up its short-term commercial
paper obligations.
It is anticipated that the indebtedness incurred by the Parent in
connection with the Offer and the Merger will be repaid from funds generated
internally by the Parent and its subsidiaries (including, after the Merger, if
consummated, funds generated by the Surviving Corporation and its subsidiaries)
and through other sources which may include the proceeds of future bank
financings, the public or private sale of debt or equity securities or a
combination thereof. No decisions have been made, however, concerning the method
the Parent will employ to repay such indebtedness. Such decision, when made,
will be based on the Parent's review from time to time of the advisability of
particular actions, as well as on prevailing interest rates and financial and
other economic conditions.
Item 10. Additional Information.
The information set forth in Items 10(f) is hereby amended and
supplemented by the following:
Pursuant to the Merger Agreement, Parent has extended the expiration
date of the tender offer to 6:00 p.m., New York City time, on December 15, 1998.
On December 3, 1998, the Parent issued a press release announcing the extension
of the expiration date, the full text of which is set forth in Exhibit (a)(13)
attached hereto and is incorporated herein by reference.
<PAGE> 4
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended by adding immediately following the reference to
Exhibit (a)(12) the following:
(a)(13) Text of Press Release dated December 3, 1998, issued by
the Parent.
Item 11 is hereby further amended by adding immediately following the
reference to Exhibit (b)(3) the following:
(b)(4) First Amendment, dated as of November 20, 1998, to the 364-Day
Competitive Advance and Revolving Credit Agreement.
(b)(5) Fourth Amendment, dated as of November 20, 1998, to the
Five-Year Competitive Advance and Revolving Credit Facility.
(b)(6) Competitive Advance and Revolving Credit Facility Agreement,
dated as of November 23, 1998, among EG&G, Inc., the Lenders
named therein, and the Chase Manhattan Bank, as Administrative
Agent.
<PAGE> 5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 5 is true, complete and
correct.
Dated: December 3, 1998 EG&G, INC.
By: /s/ Murray Gross
--------------------------------------
Name: Murray Gross
Title: Senior Vice President
LIGHTHOUSE WESTON CORP.
By: /s/ Philip Ayers
--------------------------------------
Name: Philip Ayers
Title: Secretary
<PAGE> 6
INDEX OF EXHIBITS
Number Exhibit Name
<TABLE>
<CAPTION>
<S> <C>
*(a)(1) Offer to Purchase.
*(a)(2) Letter of Transmittal.
*(a)(3) Notice of Guaranteed Delivery.
*(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
*(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
*(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9.
*(a)(7) Form of Summary Advertisement as published October 27, 1998.
*(a)(8) Text of Joint Press Release dated October 21, 1998, issued by the Company
and Parent.
*(a)(9) Text of Press Release dated October 27, 1998, issued by the Parent.
*(a)(10) Text of Press Release dated October 30, 1998, issued by the Parent.
*(a)(11) Text of Press Release dated November 6, 1998, issued by the Parent.
*(a)(12) Text of Press Release dated November 23, 1998, issued by the Parent.
(a)(13) Text of Press Release dated December 3, 1998, issued by the Parent.
**(b)(1) Termination, Replacement and Restatement Agreement dated as of March 6,
1998, among the Parent, the Lenders listed therein and Chase
Manhattan Bank (as successor to Chemical Bank) as
Administrative Agent.
***(b)(2) 364-Day Competitive Advance and Revolving Credit Agreement
dated as of March 21, 1994, among the Parent, the Lenders named
therein and Chase Manhattan Bank (as successor to Chemical
Bank) as Administrative Agent, as amended (the "364-Day
Competitive Advance and Revolving Credit Agreement").
***(b)(3) Five-Year Competitive Advance and Revolving Credit Facility
dated as of March 21, 1994, among the Parent, the Lenders
listed therein and Chase Manhattan Bank (as successor to
Chemical Bank) as Administrative Agent, as amended (the
"Five-Year Competitive Advance and Revolving Credit Facility").
(b)(4) First Amendment, dated as of November 20, 1998, to the 364-Day
Competitive Advance and Revolving Credit Agreement.
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C>
(b)(5) Fourth Amendment, dated as of November 20, 1998, to the
Five-Year Competitive Advance and Revolving Credit Facility.
(b)(6) Competitive Advance and Revolving Credit Facility Agreement,
dated as of November 23, 1998, among EG&G, Inc., the Lenders
named therein, and the Chase Manhattan Bank, as Administrative
Agent.
*(c)(1) Agreement and Plan of Merger dated as of October 21, 1998, among the
Parent, the Purchaser and the Company.
*(c)(2) Stockholders' Agreement dated as of October 21, 1998, among the Parent and
certain stockholders of the Company.
*(c)(3) Confidentiality Agreement dated as of June 9, 1998 between the Parent and
the Company.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
* Previously filed.
** Incorporated by reference to the Parent's Annual Report on Form 10-K
for the year ended December 31, 1997 (File No. 1-5075).
*** Agreement and Amendments Number 1 and 2, incorporated by reference to
the Parent's Annual Report on Form 10-K for the year ended December 31,
1995 (File No. 1-5075); Amendment Number 3, incorporated by reference
to the Parent's Annual Report on Form 10-K for the year ended December
26, 1996 (File No. 1-5075).
<PAGE> 1
Exhibit (a)(13)
[LETTERHEAD OF EG&G, INC.]
FOR IMMEDIATE RELEASE
3 December 1998
EG&G EXTENDS EXPIRATION DATE OF LUMEN TENDER OFFER
Wellesley, Mass..... EG&G (NYSE: EGG) announced today that it has extended the
expiration date of its $7.75 per share cash tender offer for Lumen Technologies,
Inc. (NYSE: LNM) Common Stock to 6:00 p.m., New York City time, on Tuesday,
December 15, 1998. EG&G noted that the other terms and conditions of its tender
offer remained unchanged.
EG&G said that it is continuing with its efforts to obtain clearance for the
Lumen acquisition from the Antitrust Division of the Department of Justice as
promptly as possible. The extension is being made in order to provide the
Antitrust Division with an opportunity to review materials to be submitted by
EG&G in response to the Antitrust Division's request for additional information.
The offer had previously been scheduled to expire at 6:00 p.m., New York City
time, on Thursday, December 3, 1998. According to the depository for the offer,
as of the close of business on December 2, 1998, 13,014,679 shares of Lumen
common stock had been validly tendered pursuant to the offer, or approximately
59% of the total number of shares on a fully-diluted basis. This number of
shares would be sufficient to satisfy the minimum condition of the offer.
EG&G, Inc. is a global technology company that provides complete systems, as
well as products to medical, aerospace, semiconductor, photographic and other
industries. It delivers skilled support services to government and industrial
customers. Based in Wellesley, Massachusetts, EG&G has annual sales of $1.4
billion and about 12,000 employees worldwide.
This press release is neither an offer to purchase nor a solicitation of an
offer to sell securities. The tender offer is made only through the Offer to
Purchase and the related Letter of Transmittal. Additional copies of such
documents can be obtained by contacting Kissel-Blake, the Information Agent for
the tender offer, at 1-800-554-7733.
<PAGE> 1
Exhibit (b)(4)
FIRST AMENDMENT (this "Amendment"), dated as
of November 20, 1998, to the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated
as of March 6, 1998 (the "Credit Agreement"), among
EG&G, INC., a Massachusetts corporation (the
"Company"), the Borrowing Subsidiaries (as such term
is defined therein; together with the Company, the
"Borrowers"), the Lenders listed in Schedule 2.01
thereof (the "Lenders") and THE CHASE MANHATTAN BANK,
a New York banking corporation, as administrative
agent for the Lenders (in such capacity, the
"Administrative Agent").
A. The Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the Credit Agreement
for the limited purposes described and on the terms and conditions set forth
herein.
B. Capitalized terms used and not defined herein are used with
the meanings assigned to such terms in the Credit Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
on the terms and subject to the conditions set forth herein, as follows:
SECTION 1. AMENDMENT OF SECTION 1.01 OF THE CREDIT AGREEMENT.
Section 1.01 of the Credit Agreement is hereby amended as follows:
In the definition of "Applicable Percentage", the Eurodollar
Spread and Facility Fee Percentage grid is hereby amended and restated
in its entirety:
================================================================================
Category 1 Eurodollar Spread Facility Fee Percentage
- ---------- ----------------- -----------------------
- --------------------------------------------------------------------------------
Aa3 or higher by Moody's; .250% .050%
AA- or higher by S&P
- --------------------------------------------------------------------------------
Category 2
- ----------
A1 or A2 by Moody's; .320% .080%
A+ or A by S&P
- --------------------------------------------------------------------------------
Category 3
- ----------
A3 by Moody's; .400% .100%
A- by S&P
- --------------------------------------------------------------------------------
<PAGE> 2
2
- --------------------------------------------------------------------------------
Category 4
- ----------
Baa1 by Moody's; .475% .125%
BBB+ by S&P
- --------------------------------------------------------------------------------
Category 5
- ----------
Baa2 by Moody's; .600% .150%
BBB by S&P
- --------------------------------------------------------------------------------
Category 6
- ----------
Baa3 by Moody's; .700% .175%
BBB- by S&P
- --------------------------------------------------------------------------------
Category 7
- ----------
Ba1 or lower by Moody's; .750% .250%
BB+ or lower by S&P
================================================================================
SECTION 2. AMENDMENT OF SECTION 2.07 OF THE CREDIT AGREEMENT.
Section 2.07(a)(i) of the Credit Agreement is hereby amended and restated as
follows:
"(i) in the case of each Eurodollar Standby Loan, the LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Percentage from time to time in effect plus an additional .125% per annum on any
day on which (A) the sum of (1) the outstanding aggregate principal amount of
all Standby Loans made by all Lenders plus (2) the outstanding aggregate
principal amount of all Competitive Loans made by all Lenders exceeds (B) 33% of
the Total Commitment and"
SECTION 3. AMENDMENT OF SECTION 5.01 OF THE CREDIT AGREEMENT.
Section 5.01 of the Credit Agreement is hereby amended by adding the following
after the heading thereof:
"The Company will give the Administrative Agent prompt written
notice of any change in any Rating that results in a change in the Category on
which the Applicable Percentage is based."
SECTION 4. AMENDMENT OF SECTION 5.07 OF THE CREDIT AGREEMENT.
Section 5.07(b)(ii) of the Credit Agreement is hereby amended by replacing the
reference to "0.35:1.00" with a reference to "0.55:1.00".
<PAGE> 3
3
SECTION 5. AMENDMENT OF SECTION 5.08 OF THE CREDIT AGREEMENT.
Section 5.08(h) of the Credit Agreement is hereby amended and restated as
follows:
"(h) to the extent that the value of all Margin Stock owned by
the Company and its Consolidated Subsidiaries (determined in accordance with
Regulation U) exceeds 25% of the value of the total assets of the Company and
its Consolidated Subsidiaries subject to this Section 5.08 (as so determined),
Liens on such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.08)."
SECTION 6. AMENDMENT OF SECTION 5.09 OF THE CREDIT AGREEMENT.
Section 5.09 of the Credit Agreement is hereby amended by adding the following
at the end thereof:
"(c) Notwithstanding anything in the foregoing to the
contrary, to the extent that the value of all Margin Stock owned by the Company
and its Consolidated Subsidiaries (determined in accordance with Regulation U)
exceeds 25% of the value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.09 (as so determined), the restrictions
contained in subsections (a)(ii) and (b)(ii) of this Section 5.09 shall not
apply to such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.09)."
SECTION 7. AMENDMENT OF ARTICLE V OF THE CREDIT AGREEMENT.
Article V of the Credit Agreement is hereby amended by adding the following at
the end thereof:
"SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will
not, and will not permit its Subsidiaries to, own Margin Stock to the extent the
value of such Margin Stock would exceed 28% of the value of the total assets of
the Company and its Consolidated Subsidiaries."
SECTION 8. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to each of the Lenders and the Administrative Agent, on
and as of the date hereof, that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and each of this Amendment and the Credit
Agreement, as amended hereby, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(b) The representations and warranties set forth in Article
III of the Credit Agreement are true and correct in all material
respects with the same
<PAGE> 4
4
effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate to an earlier
date.
(c) Immediately before and immediately after the effectiveness
of this Amendment, no Event of Default or Default has occurred and is
continuing.
(d) Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Company's and
each Subsidiary's computer systems and (ii) equipment containing
embedded microchips (including systems and equipment supplied by others
or with which the Company's or any Subsidiary's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will
be completed by July 1, 1999 except to the extent that the failure to
complete such reprogramming and testing could not in the aggregate
result in a Material Adverse Effect. The cost to the Company and the
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Company and the
Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the
Company and each Subsidiary are and, with ordinary course upgrading,
replacement and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Company and each Subsidiary
to conduct its business without a Material Adverse Effect.
SECTION 9. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective when the Administrative Agent shall have received counterparts
of this Amendment that, when taken together, bear the signatures of the Required
Lenders.
SECTION 10. CREDIT AGREEMENT. Except as specifically stated
herein, the provisions of the Credit Agreement are and shall remain in full
force and effect. As used therein, the terms "Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as amended hereby.
SECTION 11. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders under the Credit Agreement, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing herein shall be
deemed to entitle the Borrowers to a consent to, or a
<PAGE> 5
5
waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 12. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. COUNTERPARTS. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 14. EXPENSES. The Company agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred by it in
connection with this Amendment, including, but not limited to, the reasonable
fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the
Administrative Agent.
<PAGE> 6
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
EG&G, INC.,
by
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent for the Lenders,
by
---------------------------------------
Name:
Title:
DRESDNER BANK A.G., NEW YORK BRANCH AND
GRAND CAYMAN BRANCH,
by
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
by
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
---------------------------------------
Name:
Title:
<PAGE> 7
7
THE NORTHERN TRUST COMPANY,
by
---------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
by
---------------------------------------
Name:
Title:
SOCIETE GENERALE,
by
---------------------------------------
Name:
Title:
STANDARD CHARTERED BANK,
by
---------------------------------------
Name:
Title:
by
---------------------------------------
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.,
by
---------------------------------------
Name:
Title:
<PAGE> 1
Exhibit (b)(5)
FOURTH AMENDMENT (this "Amendment"), dated
as of November 20, 1998, to the 5-Year Competitive
Advance and Revolving Credit Facility Agreement dated
as of March 21, 1994 (as amended from time to time,
the "Credit Agreement"), among EG&G, INC., a
Massachusetts corporation (the "Company"), the
Borrowing Subsidiaries (as such term is defined
therein; together with the Company, the "Borrowers"),
the Lenders listed in Schedule 2.01 thereof (the
"Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent for the
Lenders (in such capacity, the "Administrative
Agent").
A. The Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the Credit Agreement
for the limited purposes described and on the terms and conditions set forth
herein.
B. Capitalized terms used and not defined herein are used with
the meanings assigned to such terms in the Credit Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
on the terms and subject to the conditions set forth herein, as follows:
SECTION 1. AMENDMENT OF SECTION 1.01 OF THE CREDIT AGREEMENT.
Section 1.01 of the Credit Agreement is hereby amended as follows:
In the definition of "Applicable Percentage", the Eurodollar
Spread and Facility Fee Percentage grid is hereby amended and restated
in its entirety:
================================================================================
Category 1 Eurodollar Spread Facility Fee Percentage
- ---------- ----------------- -----------------------
- --------------------------------------------------------------------------------
Aa3 or higher by Moody's; .230% .070%
AA- or higher by S&P
- --------------------------------------------------------------------------------
Category 2
- ----------
A1 or A2 by Moody's; .300% .100%
A+ or A by S&P
- --------------------------------------------------------------------------------
<PAGE> 2
2
- --------------------------------------------------------------------------------
Category 3
- ----------
A3 by Moody's; .375% .125%
A- by S&P
- --------------------------------------------------------------------------------
Category 4
- ----------
Baa1 by Moody's; .450% .150%
BBB+ by S&P
- --------------------------------------------------------------------------------
Category 5
- ----------
Baa2 by Moody's; .575% .175%
BBB by S&P
- --------------------------------------------------------------------------------
Category 6
- ----------
Baa3 by Moody's; .650% .225%
BBB- by S&P
- --------------------------------------------------------------------------------
Category 7
- ----------
Ba1 or lower by Moody's; .700% .300%
BB+ or lower by S&P
================================================================================
SECTION 2. AMENDMENT OF SECTION 2.07 OF THE CREDIT AGREEMENT.
Section 2.07(a)(i) of the Credit Agreement is hereby amended and restated as
follows:
"(i) in the case of each Eurodollar Standby Loan, the LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Percentage from time to time in effect plus an additional .125% per annum on any
day on which (A) the sum of (1) the outstanding aggregate principal amount of
all Standby Loans made by all Lenders plus (2) the outstanding aggregate
principal amount of all Competitive Loans made by all Lenders exceeds (B) 33% of
the Total Commitment and"
SECTION 3. AMENDMENT OF SECTION 5.01 OF THE CREDIT AGREEMENT.
Section 5.01 of the Credit Agreement is hereby amended by adding the following
after the heading thereof:
"The Company will give the Administrative Agent prompt written
notice of any change in any Rating that results in a change in the Category on
which the Applicable Percentage is based."
<PAGE> 3
3
SECTION 4. AMENDMENT OF SECTION 5.07 OF THE CREDIT AGREEMENT.
Section 5.07(b)(ii) of the Credit Agreement is hereby amended by replacing the
reference to "0.35:1.00" with a reference to "0.55:1.00".
SECTION 5. AMENDMENT OF SECTION 5.08 OF THE CREDIT AGREEMENT.
Section 5.08(h) of the Credit Agreement is hereby amended and restated as
follows:
"(h) to the extent that the value of all Margin Stock owned by
the Company and its Consolidated Subsidiaries (determined in accordance with
Regulation U) exceeds 25% of the value of the total assets of the Company and
its Consolidated Subsidiaries subject to this Section 5.08 (as so determined),
Liens on such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.08)."
SECTION 6. AMENDMENT OF SECTION 5.09 OF THE CREDIT AGREEMENT.
Section 5.09 of the Credit Agreement is hereby amended by adding the following
at the end thereof:
"(c) Notwithstanding anything in the foregoing to the
contrary, to the extent that the value of all Margin Stock owned by the Company
and its Consolidated Subsidiaries (determined in accordance with Regulation U)
exceeds 25% of the value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.09 (as so determined), the restrictions
contained in subsections (a)(ii) and (b)(ii) of this Section 5.09 shall not
apply to such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.09)."
SECTION 7. AMENDMENT OF ARTICLE V OF THE CREDIT AGREEMENT.
Article V of the Credit Agreement is hereby amended by adding the following at
the end thereof:
"SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will
not, and will not permit its Subsidiaries to, own Margin Stock to the extent the
value of such Margin Stock would exceed 28% of the value of the total assets of
the Company and its Consolidated Subsidiaries."
SECTION 8. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to each of the Lenders and the Administrative Agent, on
and as of the date hereof, that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and each of this Amendment and the Credit
Agreement, as amended hereby, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
<PAGE> 4
4
(b) The representations and warranties set forth in Article
III of the Credit Agreement are true and correct in all material
respects with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties expressly
relate to an earlier date.
(c) Immediately before and immediately after the effectiveness
of this Amendment, no Event of Default or Default has occurred and is
continuing.
(d) Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Company's and
each Subsidiary's computer systems and (ii) equipment containing
embedded microchips (including systems and equipment supplied by others
or with which the Company's or any Subsidiary's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will
be completed by July 1, 1999 except to the extent that the failure to
complete such reprogramming and testing could not in the aggregate
result in a Material Adverse Effect. The cost to the Company and the
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Company and the
Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the
Company and each Subsidiary are and, with ordinary course upgrading,
replacement and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Company and each Subsidiary
to conduct its business without a Material Adverse Effect.
SECTION 9. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective when the Administrative Agent shall have received counterparts
of this Amendment that, when taken together, bear the signatures of the Required
Lenders.
SECTION 10. CREDIT AGREEMENT. Except as specifically stated
herein, the provisions of the Credit Agreement are and shall remain in full
force and effect. As used therein, the terms "Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as amended hereby.
SECTION 11. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders under the Credit Agreement, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and
<PAGE> 5
5
effect. Nothing herein shall be deemed to entitle the Borrowers to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 12. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. COUNTERPARTS. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 14. EXPENSES. The Company agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred by it in
connection with this Amendment, including, but not limited to, the reasonable
fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the
Administrative Agent.
<PAGE> 6
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
EG&G, INC.,
by
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent for the Lenders,
by
---------------------------------------
Name:
Title:
DRESDNER BANK A.G., NEW YORK BRANCH AND
GRAND CAYMAN BRANCH,
by
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
by
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
---------------------------------------
Name:
Title:
<PAGE> 7
7
THE NORTHERN TRUST COMPANY,
by
---------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
by
---------------------------------------
Name:
Title:
SOCIETE GENERALE,
by
---------------------------------------
Name:
Title:
STANDARD CHARTERED BANK,
by
---------------------------------------
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.,
by
---------------------------------------
Name:
Title:
<PAGE> 1
Exhibit (b)(6)
================================================================================
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of November 23, 1998
among
EG&G, INC.,
THE LENDERS NAMED HEREIN
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
------------------------------
CHASE SECURITIES INC.,
as Advisor and Lead Arranger
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS.....................................................1
SECTION 1.01. Defined Terms.................................................1
SECTION 1.02. Terms Generally..............................................18
ARTICLE II. THE CREDITS....................................................18
SECTION 2.01. Commitments..................................................18
SECTION 2.02. Loans........................................................19
SECTION 2.03. Competitive Bid Procedure....................................21
SECTION 2.04. Standby Borrowing Procedure..................................24
SECTION 2.05. Facility Fees................................................24
SECTION 2.06. Conversion and Continuation of Standby Borrowings............25
SECTION 2.07. Repayment of Loans; Evidence of Debt.........................27
SECTION 2.08. Interest on Loans ...........................................27
SECTION 2.09. Default Interest.............................................28
SECTION 2.10. Alternate Rate of Interest...................................28
SECTION 2.11. Termination and Reduction of Commitments.....................29
SECTION 2.12. Prepayment...................................................30
SECTION 2.13. Reserve Requirements; Change in Circumstances................30
SECTION 2.14. Change in Legality...........................................32
SECTION 2.15. Indemnity....................................................33
SECTION 2.16. Pro Rata Treatment...........................................34
SECTION 2.17. Sharing of Setoffs...........................................35
SECTION 2.18. Payments.....................................................35
SECTION 2.19. Duty to Mitigate; Assignment of Commitments Under
Certain Circumstances......................................36
SECTION 2.20. Taxes........................................................36
ARTICLE III. REPRESENTATIONS AND WARRANTIES.................................40
SECTION 3.01. Corporate Existence and Power................................40
SECTION 3.02. Corporate and Governmental Authorization;
Contravention..............................................40
SECTION 3.03. Binding Effect...............................................41
SECTION 3.04. Financial Information........................................41
SECTION 3.05. Litigation...................................................41
SECTION 3.06. Compliance with ERISA........................................42
SECTION 3.07. Taxes........................................................42
SECTION 3.08. Subsidiaries.................................................42
SECTION 3.09. Representations and Warranties of
<PAGE> 3
Each Borrowing Subsidiary.................................42
SECTION 3.10. Federal Reserve Regulations.................................43
SECTION 3.11. Investment Company Act; Public Utility Holding
Company Act...............................................44
SECTION 3.12. Environmental and Safety Matters............................44
SECTION 3.13. Year 2000 Compliance........................................45
SECTION 3.14. No Material Adverse Change..................................45
SECTION 3.15. Solvency....................................................45
ARTICLE IV. CONDITIONS OF LENDING..........................................46
SECTION 4.01. All Borrowings..............................................46
SECTION 4.02. Closing Date................................................46
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary................48
ARTICLE V. COVENANTS......................................................48
SECTION 5.01. Information.................................................49
SECTION 5.02. Corporate Existence; Businesses and Properties..............51
SECTION 5.03. Insurance...................................................51
SECTION 5.04. Litigation and Other Notices................................51
SECTION 5.05. Maintaining Records; Access to Properties and
Inspections...............................................51
SECTION 5.06. Fixed Charge Coverage.......................................52
SECTION 5.07. Net Debt to Capitalization Ratio............................52
SECTION 5.08. Negative Pledge.............................................52
SECTION 5.09. Consolidations, Mergers and Sales of Assets.................53
SECTION 5.10. Ownership of Margin Stock...................................53
ARTICLE VI. EVENTS OF DEFAULT..............................................54
ARTICLE VII. GUARANTEE......................................................58
ARTICLE VIII. THE ADMINISTRATIVE AGENT.......................................60
ARTICLE IX. MISCELLANEOUS..................................................63
SECTION 9.01. Notices.....................................................63
SECTION 9.02. Survival of Agreement.......................................64
SECTION 9.03. Binding Effect..............................................64
SECTION 9.04. Successors and Assigns......................................64
SECTION 9.05. Expenses; Indemnity.........................................68
SECTION 9.06. Applicable Law..............................................69
SECTION 9.07. Waivers; Amendment..........................................69
SECTION 9.08. Entire Agreement............................................70
SECTION 9.09. Severability................................................70
<PAGE> 4
SECTION 9.10. Counterparts................................................70
SECTION 9.11. Headings....................................................70
SECTION 9.12. Right of Setoff.............................................70
SECTION 9.13. Jurisdiction; Consent to Service of Process.................71
SECTION 9.14. Waiver of Jury Trial........................................71
SECTION 9.15. Addition of Borrowing Subsidiaries..........................72
SECTION 9.16. Confidentiality.............................................72
SECTION 9.17. Collateral .................................................73
SECTION 9.18. Interest Rate Limitation....................................73
Exhibits
--------
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Opinion of Murray Gross, Esq.
Exhibit D-2 Form of Opinion of Murray Gross, Esq.
Exhibit E Form of Borrowing Subsidiary Agreement
Schedules
---------
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.12(a) Environmental and Safety Matters
Schedule 3.12(b) Environmental and Safety Matters
Schedule 3.12(c) Environmental and Safety Matters
<PAGE> 5
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of November 23,
1998, among EG&G, INC., a Massachusetts corporation (the
"Company"), the Borrowing Subsidiaries (as such term is
defined herein; together with the Company, the
"Borrowers"), the lenders listed in Schedule 2.01 (the
"Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
Pursuant to the Merger Agreement dated as of October 21, 1998
(the "Merger Agreement") among the Company, a wholly owned subsidiary of the
Company (the "Purchaser") and Lumen Technologies, Inc., a Delaware corporation
(the "Target"), (a) the Purchaser will make a tender offer (the "Offer") to
purchase all the issued and outstanding shares of common stock of the Target for
$7.75 in cash per share and (b) the Purchaser will be merged with and into the
Target (the "Merger", and together with the Offer, the "Acquisition") in a
transaction in which all the remaining outstanding shares of common stock of the
Target will be converted into the right to receive $7.75 in cash per share, and
as a result of which the Target will become a wholly owned subsidiary of the
Company. In connection with the Acquisition, the Company will issue up to
$250,000,000 of commercial paper to pay (a) the consideration payable in respect
of the Acquisition and (b) the transaction costs incurred in connection with the
Acquisition. All the transactions referred to in this paragraph, including the
Acquisition and the related financings, are collectively referred to herein as
the "Transactions".
The Lenders have been requested to extend credit to the
Borrowers to enable them to borrow on a standby revolving credit basis on and
after the date hereof and at any time and from time to time prior to the
Termination Date a principal amount not in excess of $100,000,000 at any time
outstanding. The Lenders have also been requested to provide a procedure
pursuant to which the Borrowers may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrowers. The proceeds of all such
borrowings are to be used by the Borrowers for general corporate purposes,
including commercial paper back-up, acquisition financing and to provide working
capital for use in the ordinary course of their businesses. The Lenders are
willing to extend such credit on the terms and subject to the conditions herein
<PAGE> 6
2
set forth. Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in Article I.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ACQUISITION" shall have the meaning assigned to such term in
the preamble to this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"AFFILIATE" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is controlled by
or is under common control with the person specified.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime
Rate" shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective on the
date such change is publicly announced as effective. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as released on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so released for any
day which is a Business Day, the arithmetic average (rounded upwards to the next
<PAGE> 7
3
1/100th of 1%), as determined by the Administrative Agent, of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" shall mean on any date, with respect to
Eurodollar Standby Loans or with respect to the Facility Fee, as the case may
be, the applicable percentage set forth below under the caption "Eurodollar
Spread" or "Facility Fee Percentage", as the case may be, based upon the Ratings
in effect on such date:
================================================================================
Rating Eurodollar Spread Facility Fee
- ------ ----------------- ------------
Percentage
----------
- --------------------------------------------------------------------------------
Category 1 .250% .050%
- ----------
Aa3 or higher by Moody's;
AA- or higher by S&P
- --------------------------------------------------------------------------------
Category 2
- ----------
A1 or A2 by Moody's; .320% .080%
A+ or A by S&P
- --------------------------------------------------------------------------------
Category 3
- ----------
A3 by Moody's; .400% .100%
A- by S&P
- --------------------------------------------------------------------------------
Category 4
- ----------
Baa1 by Moody's; .475% .125%
BBB+ by S&P
- --------------------------------------------------------------------------------
Category 5
- ----------
Baa2 by Moody's; .600% .150%
BBB by S&P
- --------------------------------------------------------------------------------
Category 6
- ----------
Baa3 by Moody's; .700% .175%
BBB- by S&P
- --------------------------------------------------------------------------------
<PAGE> 8
4
- --------------------------------------------------------------------------------
Category 7
- ----------
Ba1 or lower by Moody's; .750% .250%
BB+ or lower by S&P
================================================================================
For purposes of the foregoing, (i) if the Ratings shall fall within different
Categories, the Applicable Percentage shall be based upon the higher of the two
Categories; PROVIDED, HOWEVER, that if the difference in the Ratings is greater
than one Category, the Applicable Percentage will be based on the Category which
is one Category below the higher Rating; (ii) if no Ratings exist, the
Applicable Percentage shall be based upon Category 7, and (iii) if any Rating
shall be changed (other than as a result of a change in the rating system of
Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the rating agency making such change. Each such change in the
Applicable Percentage shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the parties hereto shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system or the non-availability of ratings from such rating
agency, and pending the effectiveness of any such amendment the Applicable
Percentage shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an assignee in the form of Exhibit C.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or any duly authorized committee thereof.
"BORROWING" shall mean a group of Loans of a single Type made
by the Lenders to a single Borrower (or, in the case of a Competitive Borrowing,
by the Lender or Lenders whose Competitive Bids have been accepted pursuant to
Section 2.03) on a single date and as to which a single Interest Period is in
effect.
<PAGE> 9
5
"BORROWING SUBSIDIARY" shall mean any Subsidiary which shall
have executed and delivered to the Administrative Agent and each Lender a
Borrowing Subsidiary Agreement.
"BORROWING SUBSIDIARY AGREEMENT" shall mean an agreement, in
the form of Exhibit E hereto, duly executed by the Company and a Subsidiary.
"BUSINESS DAY" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; PROVIDED, HOWEVER, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"A CHANGE IN CONTROL" shall be deemed to have occurred if (a)
any person or group of persons shall have acquired beneficial ownership of more
than 50% of the outstanding Voting Shares of the Company (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder), or (b) during any period of 12
consecutive months, commencing before or after the date of this Agreement,
individuals who on the first day of such period were directors of the Company
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.
"CLOSING DATE" shall mean the date hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender hereunder as set forth as of the Closing Date in
Schedule 2.01 hereto as such Lender's Commitment may be permanently terminated
or reduced from time to time pursuant to Section 2.11. The Commitment of each
Lender shall automatically and permanently terminate on the Termination Date if
not terminated earlier pursuant to the terms hereof.
"COMPETITIVE BID" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
<PAGE> 10
6
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a
notification made by a Borrower pursuant to Section 2.03(d) in the form of
Exhibit A-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid,
(i) in the case of a Eurodollar Loan, the Margin, and (ii) in the case of a
Fixed Rate Loan, the fixed rate of interest offered by the Lender making such
Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit A-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.03.
"COMPETITIVE LOAN" shall mean a Loan made pursuant to the
bidding procedure described in Section 2.03. Each Competitive Loan shall be a
Eurodollar Competitive Loan or a Fixed Rate Loan.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated
Net Income of the Company and its Consolidated Subsidiaries excluding the effect
of non-cash extraordinary items and accounting changes for such period, plus
income taxes during such period, plus the aggregate amount deducted in
determining such Consolidated Net Income for such period in respect of
Consolidated Net Interest Expense of the Company and its Consolidated
Subsidiaries for such period, all determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of the Company and its Consolidated
Subsidiaries for such period, determined in accordance with GAAP.
"CONSOLIDATED NET INDEBTEDNESS" shall mean, for any date, (a)
the sum of all outstanding Indebtedness of the Company and its Consolidated
Subsidiaries as of such date less (b) the lesser of (i) $50,000,000 and (ii)
Eligible Investments as of such date, all determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" shall mean, for any
period, (a) the gross interest expense of the Company and its Consolidated
Subsidiaries (excluding the amortization of transaction costs) in respect of
Indebtedness included within clauses (i) through (iv) of
<PAGE> 11
7
the definition of Indebtedness for such period minus (b) interest income for
such period, all determined in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any
Subsidiary or other entity the accounts of which would be consolidated with
those of the Company in its consolidated financial statements as of such date.
"DEFAULT" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the
United States of America.
"ELIGIBLE INVESTMENTS" shall mean:
(a) cash and cash equivalents;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof by the Company or any Subsidiary;
(c) investments in money market funds the assets of which are
invested in obligations of the type described in (b) above
(irrespective of maturity); and
(d) other money market investments offered by any of the
Lenders or a commercial bank having the highest credit rating available
from Standard & Poor's Corporation or Moody's Investors Service, Inc.
and having maturities of less than 90 days.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or
not incorporated) that, together with the Company, is treated as a single
employer under Section 414 of the Code.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
<PAGE> 12
8
"EURODOLLAR COMPETITIVE LOAN" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Competitive Loan
or Eurodollar Standby Loan.
"EURODOLLAR STANDBY LOAN" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such
term in Article VI.
"EXISTING FACILITIES" shall mean (i) the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of March 6, 1998 and
amended from time to time, among the Company, certain of the Subsidiaries, the
lenders named therein and The Chase Manhattan Bank, as administrative agent and
(ii) the 5-Year Competitive Advance and Revolving Credit Facility Agreement
dated as of March 21, 1994 and amended from time to time, among the Company,
certain of the Subsidiaries, the lenders named therein and The Chase Manhattan
Bank, as administrative agent.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 2.05(a).
"FINANCIAL OFFICER" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer or assistant
treasurer of such corporation.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of
Fixed Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
<PAGE> 13
9
"GUARANTEED OBLIGATIONS" shall mean the principal of and
interest on the Loans made to, and the other obligations, monetary or otherwise,
of, the Borrowing Subsidiaries under this Agreement.
"INDEBTEDNESS" of any person shall mean at any date, without
duplication, (i) all obligations of such person for borrowed money (but not
including non-recourse obligations of such person), (ii) all obligations of such
person evidenced by bonds, debentures, notes or other similar instruments,
except trade payables and reimbursement obligations in respect of performance
bonds and standby letters of credit to the extent the obligations underlying
such letters of credit would not be considered Indebtedness, all of which arise
in the ordinary course of business, (iii) all obligations of such person to pay
the deferred purchase price of property or services, except trade accounts
payable and accrued expenses arising in the ordinary course of business, (iv)
all obligations of such person as lessee under capital leases, (v) all
Indebtedness of others secured by a Lien on any asset of such person (but not
including non-recourse obligations of such person) and (vi) all Indebtedness of
others guaranteed by such person.
"INTEREST PAYMENT DATE" shall mean (i) as to any Eurodollar
Loan for which the Interest Period is 1, 2 or 3 months, the last day of the
Interest Period, (ii) as to any Eurodollar Loan for which the Interest Period is
6 months, the last day of the Interest Period and the date that would be the
last day of an Interest Period commencing on the same date but having a duration
of 3 months, (iii) as to any ABR Loan, the last day of March, June, September
and December in each year, or if such day is not a Business Day, the next
succeeding Business Day and (iv) as to any Fixed Rate Loan, the last day of the
Interest Period applicable thereto.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the next succeeding March 31, June
30, September 30 or December 31, or, if earlier, on the
<PAGE> 14
10
Maturity Date or the date such Borrowing is repaid or prepaid in accordance with
Section 2.07 or Section 2.12 and (c) as to any Fixed Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offers to make the Fixed Rate Loans comprising
such Borrowing were extended, which shall not be earlier than seven days after
the date of such Borrowing or later than 360 days after the date of such
Borrowing; PROVIDED, HOWEVER, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"LIBO RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the arithmetic average of the
rates at which dollar deposits approximately equal in principal amount to (i) in
the case of a Standby Borrowing, the Administrative Agent's portion of such
Eurodollar Borrowing and (ii) in the case of a Competitive Borrowing, a
principal amount that would have been the Administrative Agent's portion of such
Competitive Borrowing had such Competitive Borrowing been a Standby Borrowing,
and for a maturity comparable to such Interest Period are offered to the
principal London offices of the Administrative Agent (or, if the Administrative
Agent does not at the time maintain a London office, the principal London office
of any Affiliate of the Administrative Agent) in immediately available funds in
the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any conditional
sale or other title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction).
"LOAN" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"MARGIN" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage
<PAGE> 15
11
rate per annum in the form of a decimal to no more than four decimal places) to
be added to or subtracted from the LIBO Rate in order to determine the interest
rate applicable to such Loan, as specified in the Competitive Bid relating to
such Loan.
"MARGIN REGULATIONS" shall mean Regulations U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"MARGIN STOCK" shall have the meaning given such term under
Regulation U of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a materially adverse
effect on the business, assets, operations or condition, financial or otherwise,
of the Company and its Consolidated Subsidiaries taken as a whole.
"MATURITY DATE" shall mean March 5, 2000.
"MERGER" shall have the meaning assigned to such term in the
preamble to this Agreement.
"MERGER AGREEMENT" shall have the meaning assigned to such
term in the preamble to this Agreement.
"MOODY'S" shall mean Moody's Investors Service, Inc., or any
of its successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"OFFER" shall have the meaning assigned to such term in the
preamble to this Agreement.
"PERSON" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
<PAGE> 16
12
"PLAN" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code that is maintained for current or former employees, or
any beneficiary thereof, of the Company or any ERISA Affiliate.
"PURCHASER" shall have the meaning assigned to such term in
the preamble to this Agreement.
"RATINGS" shall mean the ratings from time to time established
by Moody's and S&P for senior, unsecured, non-credit-enhanced long-term debt of
the Company.
"REGISTER" shall have the meaning given such term in
Section 9.04(d).
"REGULATION D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"REPORTABLE EVENT" shall mean any reportable event as defined
in Section 4043(b) of ERISA or the regulations issued thereunder with respect to
a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having
Commitments representing more than 50% of the Total Commitment or, for purposes
of acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding.
"S&P" shall mean Standard and Poor's Rating Group, a division
of The McGraw-Hill Companies, Inc., or any of its successors.
"SHAREHOLDERS' EQUITY" shall mean, with respect to the Company
at any date, (a) the sum of (i) common stock and preferred stock taken at par or
stated value at such date, (ii) capital in excess of par value at such date,
(iii) cumulative translation adjustments and other adjustments required by GAAP
at such date and (iv) retained earnings (or deficit) at such date minus (b)
treasury stock at such date, all determined in accordance with GAAP.
"STANDBY BORROWING" shall mean a Borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
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"STANDBY BORROWING REQUEST" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit A-5.
"STANDBY LOANS" shall mean the revolving loans made pursuant
to Section 2.04. Each Standby Loan shall be a Eurodollar Standby Loan or an ABR
Loan.
"SUBSIDIARY" shall mean, with respect to any person (the
"parent"), any corporation, association or other business entity of which
securities or other ownership interests representing more than 50% of the
ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" shall mean a subsidiary of the Company.
"TARGET" shall have the meaning assigned to such term in the
preamble to this Agreement.
"TERMINATION DATE" shall mean March 5, 1999.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate
amount of Commitments of all the Lenders, as in effect at such time.
"TRANSACTIONS" shall have the meaning assigned to such term in
the preamble to this Agreement.
"TYPE", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "RATE" shall
include the LIBO Rate, the Alternate Base Rate and the Fixed Rate.
"VOTING SHARES" shall mean, as to any corporation, outstanding
shares of stock of any class of such corporation entitled to vote in the
election of directors, excluding shares entitled so to vote only upon the
happening of some contingency.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the
<PAGE> 18
14
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED,
HOWEVER, that for purposes of determining compliance with any covenant set forth
in Article V, such terms shall be construed in accordance with GAAP as in effect
on the date hereof applied on a basis consistent with the application used in
preparing the Company's audited financial statements referred to in Section
3.04.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Standby Loans to the
Borrowers, at any time and from time to time on and after the Closing Date
hereof and until the earlier of the Termination Date and the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment minus the amount by which the
Competitive Loans outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.16, subject, however, to the conditions that
(i) at no time shall (A) the sum of (x) the outstanding aggregate principal
amount of all Standby Loans made by all Lenders plus (y) the outstanding
aggregate principal amount of all Competitive Loans made by all Lenders exceed
(B) the Total Commitment and (ii) at all times the outstanding aggregate
principal amount of all Standby Loans made by each Lender shall equal the
product of (A) the percentage which its Commitment represents of the Total
Commitment times (B) the outstanding aggregate principal amount of all Standby
Loans.
Within the foregoing limits, the Borrowers may borrow, pay or
prepay and reborrow Standby Loans hereunder, on and after the Closing Date and
prior to the Termination Date, subject to the terms, conditions and limitations
set forth herein.
<PAGE> 19
15
SECTION 2.02. LOANS. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments; PROVIDED, HOWEVER, that the
failure of any Lender to make any Standby Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make
any Loan required to be made by such other Lender). Each Competitive Loan shall
be made in accordance with the procedures set forth in Section 2.03. The Standby
Loans or Competitive Loans comprising any Borrowing shall be in an aggregate
principal amount which is an integral multiple of $1,000,000 and not less than
$5,000,000 (or an aggregate principal amount equal to the remaining balance of
the available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as any
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that (i)
any exercise of such option shall not affect the obligation of such Borrower to
repay such Loan in accordance with the terms of this Agreement and (ii) the
Borrowers shall not be liable for increased costs under Section 2.13 or 2.14 to
the extent that (A) such costs could be avoided by the use of a different branch
or Affiliate to make Eurodollar Loans and (B) such use would not, in the
judgment of such Lender, entail any expense for which such Lender shall not be
indemnified hereunder. Borrowings of more than one Type may be outstanding at
the same time; PROVIDED, HOWEVER, that no Borrowing shall be requested which, if
made, would result in an aggregate of more than 10 separate Standby Borrowings
comprised of Eurodollar Loans being outstanding hereunder at any one time. For
purposes of the foregoing, Loans having different Interest Periods, regardless
of whether they commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.02(d), each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to the
general deposit account of the applicable Borrower with the
<PAGE> 20
16
Administrative Agent or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted. Standby Loans shall be made by the
Lenders pro rata in accordance with Section 2.16. Unless the Administrative
Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with this paragraph (c) and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the applicable Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Any Borrower may refinance all or any part of any
Borrowing with a Borrowing of the same or a different Type made pursuant to
Section 2.03 or Section 2.04, subject to the conditions and limitations set
forth herein and elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Standby Borrowings and Standby Borrowings with
Competitive Borrowings. Any Borrowing or part thereof so refinanced shall be
deemed to be repaid in accordance with Section 2.07 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, to the extent they do
not exceed the principal amount of the Borrowing being refinanced, shall not be
paid by the Lenders to the Administrative Agent or by the Administrative Agent
to the applicable Borrower pursuant to Section 2.02(c); PROVIDED, HOWEVER, that
(i) if the principal amount extended by a Lender in a refinancing is greater
than the principal amount extended by such Lender in the Borrowing being
refinanced, then such Lender shall
<PAGE> 21
17
pay such difference to the Administrative Agent for distribution to the Lender
described in (ii) below, (ii) if the principal amount extended by a Lender in
the Borrowing being refinanced is greater than the principal amount being
extended by such Lender in the refinancing, the Administrative Agent shall
return the difference to such Lender out of amounts received pursuant to (i)
above and (iii) to the extent any Lender fails to pay the Agent amounts due from
it pursuant to (i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.07 and shall be
payable by the Company.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to
request Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before a proposed Competitive Borrowing and (ii) in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the applicable Borrower of such rejection by
telecopy. Each Competitive Bid Request shall refer to this Agreement and specify
whether the Borrowing then being requested is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing, the date of such Borrowing (which shall be a Business
Day), the aggregate principal amount thereof, which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000, and
the Interest Period with respect thereto (which may not end after the
Termination Date). Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid, the Administrative Agent shall invite by telecopy
(in the form set forth in Exhibit A-2 hereto) the Lenders to bid, on the terms
and conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion,
make one or more Competitive Bids to the applicable Borrower responsive to such
Borrower's Competitive Bid Request. Each Competitive Bid by a Lender must be
received by the Administrative Agent by telecopy, in the form of Exhibit A-3
hereto, (i) in the case of a Eurodollar Competitive Borrowing, not later than
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9:30 a.m., New York City time, three Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., New York City time, on the day of a proposed Competitive Borrowing.
Multiple bids will be accepted by the Administrative Agent. Competitive Bids
that do not conform substantially to the format of Exhibit A-3 may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
Lender making such nonconforming bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may equal the entire principal amount
of the Competitive Borrowing requested) of the Competitive Loan or Loans that
the Lender is willing to make, (y) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (z) the
Interest Period and the last day thereof. If any Lender invited to bid shall
elect not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent by telecopy (I) in the case of Eurodollar Competitive
Loans, not later than 9:30 a.m., New York City time, three Business Days before
a proposed Competitive Borrowing, and (II) in the case of Fixed Rate Loans, not
later than 9:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan as part
of such Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant
to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
applicable Borrower, by telecopy, of all the Competitive Bids made, the
Competitive Bid Rate and the principal amount of each Competitive Loan in
respect of which a Competitive Bid was made and the identity of the Lender that
made each bid. The Administrative Agent shall send a copy of all Competitive
Bids to such Borrower for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.03.
(d) The applicable Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d), accept or
reject any Competitive Bid referred to in paragraph (c) above. Such Borrower
shall notify the Administrative Agent by telephone, confirmed by telecopy in the
form of a Competitive Bid Accept/Reject Letter, whether and to what extent it
has decided to accept or reject any of or all the bids referred to in paragraph
(c) above, (x) in the case of a Eurodollar
<PAGE> 23
19
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that (i) the failure of
such Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) such Borrower shall not accept a
bid made at a particular Competitive Bid Rate if it has decided to reject a bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) if such Borrower shall accept a
bid or bids made at a particular Competitive Bid Rate but the amount of such bid
or bids shall cause the total amount of bids to be accepted to exceed the amount
specified in the Competitive Bid Request, then such Borrower shall accept a
portion of such bid or bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request, which acceptance, in the case of
multiple bids at such Competitive Bid Rate, shall be made pro rata in accordance
with the amount of each such bid at such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of $5,000,000 and
an integral multiple of $1,000,000; PROVIDED FURTHER, HOWEVER, that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the applicable Borrower. A notice given pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan or Loans in respect of which its
bid has been accepted.
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(f) A Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the applicable Borrower one quarter of an hour earlier than the latest time
at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given
in accordance with Section 9.01.
SECTION 2.04. STANDBY BORROWING PROCEDURE. In order to request
a Standby Borrowing, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Standby Borrowing Request in the form of
Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not later than
10:30 a.m., New York City time, three Business Days before such Borrowing, and
(b) in the case of an ABR Borrowing, not later than 10:30 a.m., New York City
time, on the day of such Borrowing. No Fixed Rate Loan shall be requested or
made pursuant to a Standby Borrowing Request. Such notice shall be irrevocable
and shall in each case specify (i) whether the Borrowing then being requested is
to be a Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such
Standby Borrowing (which shall be a Business Day) and the amount thereof; and
(iii) if such Borrowing is to be a Eurodollar Standby Borrowing, the Interest
Period with respect thereto, which shall not end after the Termination Date. If
no election as to the Type of Standby Borrowing is specified in any such notice,
then the requested Standby Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Standby Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall promptly advise the Lenders
of any notice given pursuant to this Section 2.04 and of each Lender's portion
of the requested Borrowing.
SECTION 2.05. FACILITY FEES. (a) The Company agrees to pay to
each Lender, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 (with the first payment being due on December 31,
1998), on the Termination Date, on the Maturity Date and on the date on which
the Commitment of such Lender shall be terminated as provided herein, a facility
fee (a "Facility Fee"), at a rate per annum equal to the
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Applicable Percentage from time to time in effect (i) on the average daily
amount of the Commitment of such Lender, whether used or unused, on or prior to
the Termination Date, and (ii) on the daily average amount of the outstanding
Loans of such Lender after the Termination Date, in each case during the
preceding quarter (or other period commencing on the date of this Agreement, or
ending with the Termination Date or the Maturity Date or the date on which the
Commitment of such Lender shall be terminated). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Facility Fee due to each Lender shall commence to accrue on the date
of this Agreement and shall cease to accrue on the earlier of the Maturity Date
and the date on which the Commitment of such Lender shall have been terminated
and the Loans of such Lender shall have been repaid.
(b) All Facility Fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, if
and as appropriate, among the Lenders. Once paid, none of the Facility Fees
shall be refundable under any circumstances.
SECTION 2.06. CONVERSION AND CONTINUATION OF STANDBY
BORROWINGS. The applicable Borrower shall have the right on or after the
Termination Date, upon prior irrevocable notice to the Administrative Agent, (a)
not later than 11:00 a.m., New York City time, one Business Day prior to
conversion, to convert any Eurodollar Standby Borrowing into an ABR Borrowing,
(b) not later than 11:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Standby Borrowing or to continue any Eurodollar Standby Borrowing as a
Eurodollar Standby Borrowing for an additional Interest Period, and (c) not
later than 11:00 a.m., New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Standby Borrowing to another permissible Interest Period subject in each case to
the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Standby Borrowing;
(ii) if less than all the outstanding principal amount of any
Standby Borrowing shall be converted or continued, the aggregate
principal amount of such Standby Borrowing converted or continued shall
be an
<PAGE> 26
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integral multiple of $1,000,000 and not less than $5,000,000;
(iii) if any Eurodollar Standby Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, the
applicable Borrower shall pay, upon demand, any amounts due to the
Lenders pursuant to Section 2.15;
(iv) any portion of a Standby Borrowing maturing or required
to be repaid in less than one month may not be converted into or
continued as a Eurodollar Standby Borrowing;
(v) any portion of a Eurodollar Standby Borrowing which cannot
be converted into or continued as a Eurodollar Standby Borrowing by
reason of clause (iv) above shall be automatically converted at the end
of the Interest Period in effect for such Borrowing into an ABR
Borrowing; and
(vi) no Interest Period may be selected for any Eurodollar
Standby Borrowing or that would end later than the Maturity Date.
Each notice pursuant to this Section 2.06 shall be by hand
delivery or telecopier and irrevocable and shall refer to this Agreement and
specify (A) the identity and amount of the Standby Borrowing that the Borrower
requests be converted or continued, (B) whether such Standby Borrowing is to be
converted to or continued as a Eurodollar Standby Borrowing or an ABR Borrowing,
(C) if such notice requests a conversion, the date of such conversion (which
shall be a Business Day) and (D) if such Standby Borrowing is to be converted to
or continued as a Eurodollar Standby Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Standby Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the other Lenders of any notice
given pursuant to this Section 2.06 and of each Lender's portion of any
converted or continued Standby Borrowing. If, with respect to any Interest
Period ending on or after the Termination Date, the applicable Borrower shall
not have given notice in accordance with this Section 2.06 to continue any
Standby Borrowing into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this Section 2.06 to convert such Standby
Borrowing), such Standby Borrowing shall, at the end of such Interest Period
(unless repaid pursuant to the terms
<PAGE> 27
23
hereof), automatically be continued into such subsequent Interest Period as an
ABR Borrowing.
SECTION 2.07 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each
Borrower hereby agrees that the outstanding principal balance of each Standby
Loan shall be payable on the Maturity Date and that the outstanding principal
balance of each Competitive Loan shall be payable on the last day of the
Interest Period applicable thereto and on the Termination Date. Each Loan shall
bear interest on the outstanding principal balance thereof as set forth in
Section 2.08.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Type of each Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from each Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; PROVIDED, HOWEVER, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrowers to repay the Loans in
accordance with their terms.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions
of Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to (i) in the case of each Eurodollar
Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage from time to time in effect plus an additional
.125% per annum on any day on which (A) the sum of (1) the outstanding aggregate
principal amount of all Standby Loans made by all Lenders plus (2) the
outstanding aggregate principal amount of all Competitive Loans made
<PAGE> 28
24
by all Lenders exceeds (B) 33% of the Total Commitment and (ii) in the case of
each Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Margin offered by the Lender making such Loan
and accepted by the applicable Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, for periods during which the Alternate Base Rate is determined by reference
to the Prime Rate and 360 days for other periods) at a rate per annum equal to
the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable LIBO Rate or Alternate Base Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.09. DEFAULT INTEREST. If a Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, such Borrower shall owe interest, payable on demand,
to the extent permitted by law, on such defaulted amount up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (computed as provided in Section 2.08(b)) equal to the Alternate
Base Rate plus 2%.
SECTION 2.10. ALTERNATE RATE OF INTEREST. (a) In the event,
and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined (i) that dollar deposits in the
principal amounts of the Eurodollar Loans comprising such Borrowing are not
generally available in the London interbank market or (ii) that reasonable means
do not exist for ascertaining the LIBO Rate, the Administrative Agent shall, as
soon as practicable
<PAGE> 29
25
thereafter, give telecopy notice of such determination to the Borrowers and the
Lenders. In the event of any such determination under clauses (i) or (ii) above,
until the Administrative Agent shall have advised the Borrowers and the Lenders
that the circumstances giving rise to such notice no longer exist, (x) any
request by a Borrower for a Eurodollar Competitive Borrowing pursuant to Section
2.03 shall be of no force and effect and shall be denied by the Administrative
Agent and (y) any request by a Borrower for a Eurodollar Standby Borrowing
pursuant to Section 2.04 shall be deemed to be a request for an ABR Borrowing.
(b) In the event a Lender notifies the Administrative Agent
that the rates at which dollar deposits are being offered will not adequately
and fairly reflect the cost to such Lender of making or maintaining its
Eurodollar Loan during such Interest Period, the Administrative Agent shall
notify the applicable Borrower of such notice and until the Lender shall have
advised the Administrative Agent that the circumstances giving rise to such
notice no longer exist, any request by such Borrower for a Eurodollar Standby
Borrowing shall be deemed a request for an ABR Borrowing for the same Interest
Period with respect to such Lender.
(c) Each determination by the Administrative Agent hereunder
shall be made in good faith and shall be conclusive absent manifest error.
SECTION 2.11. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
The Commitments shall be automatically terminated on the Termination Date.
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Company may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $5,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Loans.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Company shall pay to the Administrative Agent for the account of the
Lenders, on each date of reduction of any portion of the Total Commitment, the
Facility Fees on the amount of
<PAGE> 30
26
the Commitments so terminated accrued through the date of such termination or
reduction.
SECTION 2.12. PREPAYMENT. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Standby Borrowing, in
whole or in part, upon giving telecopy notice (or telephone notice promptly
confirmed by telecopy) to the Administrative Agent: (i) before 10:00 a.m., New
York City time, three Business Days prior to prepayment, in the case of
Eurodollar Loans, and (ii) before 10:00 a.m., New York City time, one Business
Day prior to prepayment, in the case of ABR Loans; PROVIDED, HOWEVER, that each
partial prepayment shall be in an amount which is an integral multiple of
$1,000,000 and not less than $5,000,000. No prepayment may be made in respect of
any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11(b), the Borrowers shall pay or prepay so
much of the Standby Borrowings as shall be necessary in order that the aggregate
principal amount of the Competitive Loans and Standby Loans outstanding will not
exceed the Total Commitment, after giving effect to such termination or
reduction.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the applicable Borrower to prepay
such Borrowing (or portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.12 shall be subject to
Section 2.15 but otherwise without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on any Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurodollar Loan or
Fixed Rate Loan made
<PAGE> 31
27
by such Lender, and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan or Fixed Rate
Loan or to reduce the amount of any sum received or receivable by such Lender
with respect to any Eurodollar Loan or Fixed Rate Loan hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender to be
material, then such additional amount or amounts as will compensate such Lender
for such additional costs or reduction will be paid by the Borrowers to such
Lender upon demand. Notwithstanding the foregoing, no Lender shall be entitled
to request compensation under this paragraph with respect to any Competitive
Loan if the change giving rise to such request was applicable to such Lender at
the time of submission of the Competitive Bid pursuant to which such Competitive
Loan was made.
(b) If any Lender shall have determined that the adoption
after the date hereof of any law, rule, regulation or guideline arising out of
the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards," or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital as a consequence of this
Agreement, such Lender's Commitment or the Loans made by such Lender pursuant
hereto to a level below that which such Lender could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies
with respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time such additional amount or amounts as will
compensate such Lender for such reduction will be paid by the Borrowers to such
Lender.
(c) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a) or (b) above, as the case may be, shall be delivered to the
Company promptly by such Lender upon becoming aware of any costs pursuant to
paragraphs (a) or (b) above and shall be conclusive absent manifest error. The
Company shall pay
<PAGE> 32
28
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such period
or any other period. The protection of this Section shall be available to each
Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed. No Lender shall be entitled
to compensation under this Section 2.13 for any costs incurred or reduction
suffered with respect to any date unless such Lender shall have notified the
Company that it will demand compensation for such costs or reductions not more
than 90 days after the later of (i) such date and (ii) the date on which such
Lender shall have become aware of such costs or reductions. Notwithstanding any
other provision of this Section 2.13, no Lender shall demand compensation for
any increased cost or reduction referred to above if it shall not at the time be
the general policy or practice of such Lender to demand such compensation in
similar circumstances under comparable provisions of other credit agreements, if
any.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Company and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request for a Eurodollar Standby Borrowing shall, as to
such Lender only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which
<PAGE> 33
29
event all such Eurodollar Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in paragraph
(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice by any Lender
shall be effective as to each Eurodollar Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt.
SECTION 2.15. INDEMNITY. The Borrowers shall indemnify each
Lender against any out-of-pocket loss or expense which such Lender may sustain
or incur as a consequence of (a) any failure to borrow or to refinance any Loan
hereunder after irrevocable notice of such borrowing or refinancing has been
given pursuant to Section 2.03 or 2.04, (b) any payment, prepayment or
conversion, or assignment required under Section 2.19, of a Eurodollar Loan
required by any other provision of this Agreement (other than Section 2.14) or
otherwise made or deemed made on a date other than the last day of the Interest
Period, if any, applicable thereto, (c) any default in payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (d) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan or a Fixed Rate
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
or so assigned (assumed to be the LIBO Rate applicable thereto or, in the case
of a Fixed Rate Loan, the fixed rate of interest applicable thereto) for the
period from the date of such payment, prepayment, refinancing or failure to
borrow or refinance or such
<PAGE> 34
30
assignment, to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow or refinance the Interest Period for such Loan which
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying in similar investments the funds so paid, prepaid or
not borrowed or refinanced or so assigned for the remainder of such period or
Interest Period, as the case may be. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.15 shall be delivered to the Borrowers and shall be conclusive absent
manifest error.
SECTION 2.16. PRO RATA TREATMENT. Except as required under
Section 2.13, each payment or prepayment of principal of any Standby Borrowing,
each payment of interest on the Standby Loans, each payment of the Facility
Fees, each reduction of the Commitments and each refinancing of any Borrowing
with a Standby Borrowing of any Type, shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Standby Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or
<PAGE> 35
31
in lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Standby Loan or
Loans as a result of which the unpaid principal portion of its Standby Loans
shall be proportionately less than the unpaid principal portion of the Standby
Loans of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in the Standby Loans of such
other Lender, so that the aggregate unpaid principal amount of the Standby Loans
and participations in the Standby Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; PROVIDED, HOWEVER, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.17
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Standby Loan in the amount of such
participation.
SECTION 2.18. PAYMENTS. (a) The Borrowers shall make each
payment (including principal of or interest on any Borrowing and any Facility
Fees or other amounts) hereunder from an account in the United States not later
than 12:00 noon, New York City time, on the date when due in dollars to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York, in
immediately available funds.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Facility Fees or other amounts) hereunder shall become
due, or otherwise would occur, on a day that is not a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of interest or Facility Fees,
if applicable.
<PAGE> 36
32
SECTION 2.19. DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS
UNDER CERTAIN CIRCUMSTANCES. (a) Any Lender (or Transferee) claiming any
additional amounts payable pursuant to Section 2.13 or Section 2.20 or
exercising its rights under Section 2.14 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Company or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Lender (or Transferee), be
otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice
or certificate pursuant to Section 2.10(b), 2.13 or 2.14, or the Borrower shall
be required to make additional payments to any Lender under Section 2.20, the
Company shall have the right, at its own expense (which shall include the
processing and recordation fee referred to in Section 9.04(b)), upon notice to
such Lender and the Administrative Agent, to require such Lender to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in Section 9.04) all interests, rights and obligations contained
hereunder to another financial institution approved by the Administrative Agent
(which approval shall not be unreasonably withheld) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the assignee
or the Borrowers, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and
all other amounts accrued for its account or owed to it hereunder.
SECTION 2.20. TAXES. (a) Any and all payments to the Lenders
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING (i) income taxes imposed on the net income of the Administrative Agent
or any Lender (or any transferee or assignee thereof, including a participation
holder (any such entity a "Transferee")) and (ii) franchise taxes imposed on the
net income of the Administrative Agent or any Lender (or Transferee), in each
case by the jurisdiction under the laws of which the
<PAGE> 37
33
Administrative Agent or such Lender (or Transferee) is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or individually,
"Taxes"). If any Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender (or any Transferee) or the
Administrative Agent, (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) such Lender (or Transferee) or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes paid
by such Lender (or Transferee) or the Administrative Agent, as the case may be,
and any liability (including penalties, interest and expenses (including
reasonable attorney's fees and expenses)) arising therefrom or with respect
thereto. A certificate as to the amount of such payment or liability prepared by
a Lender, or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Lender (or Transferee) or the
Administrative Agent, as the case may be, makes written demand therefor.
(d) If a Lender (or Transferee) or the Administrative Agent
shall become aware that it is entitled to claim a refund from a Governmental
Authority in respect of Taxes or Other Taxes as to which it has been indemnified
by the Borrowers, or with respect to which the Borrowers have paid additional
amounts, pursuant to this Section 2.20, it shall promptly notify the Borrowers
of the availability of such refund claim and shall, within 30 days after receipt
of a request by the Borrowers, make a claim to such Governmental Authority for
such refund at
<PAGE> 38
34
the Borrowers' expense. If a Lender (or Transferee) or the Administrative Agent
receives a refund (including pursuant to a claim for refund made pursuant to the
preceding sentence) in respect of any Taxes or Other Taxes as to which it has
been indemnified by the Borrowers or with respect to which the Borrowers have
paid additional amounts pursuant to this Section 2.20, it shall within 30 days
from the date of such receipt pay over such refund to the Borrowers (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrowers under this Section 2.20 with respect to the Taxes or Other Taxes
giving rise to such refund), without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); PROVIDED, HOWEVER,
that the Borrowers, upon the request of such Lender (or Transferee) or the
Administrative Agent, agree to repay the amount paid over to the Borrowers (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrowers to the relevant Governmental Authority,
the Borrowers will deliver to the Administrative Agent, at its address referred
to in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder for a period of 3 years.
(g) Each Lender (or Transferee) that is organized under the
laws of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of
<PAGE> 39
35
Section 871(h)(3)(B) of the Code) of the Company and is not a controlled foreign
corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Company under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"). In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.20(g), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.20(g) that such Non-U.S. Lender is not legally able to deliver.
(h) The Borrowers shall not be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of United States Federal withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that is
a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office, the
date such Non-U.S. Lender designated such New Lending Office with respect to a
Loan; PROVIDED, HOWEVER, that this clause (i) shall not apply to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Company; and PROVIDED FURTHER, HOWEVER, that this clause (i)
shall not apply to the extent the indemnity payment or additional amounts any
Transferee, or Lender (or Transferee) through a New Lending Office, would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender (or Transferee) making
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts would
<PAGE> 40
36
not have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Any Lender (or Transferee) claiming any indemnity payment
or additional amounts payable pursuant to this Section 2.20 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.20 shall require any
Lender (or Transferee) or the Administrative Agent to make available any of its
tax returns (or any other information that it deems to be confidential or
proprietary).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Lenders
that:
SECTION 3.01. CORPORATE EXISTENCE AND POWER. The Company and
each Borrowing Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 3.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Company of this
Agreement (a) is within the Company's corporate powers, (b) has been duly
authorized by all necessary corporate action, (c) requires no action by or in
respect of, or filing with, any Governmental Authority and (d) does not (i)
contravene, or constitute a default under, any applicable provision of law or
regulation either of the United States or a particular state thereof or of the
certificate of incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or (ii) result in the
<PAGE> 41
37
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 3.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of the Company, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of the rights of its
creditors generally and subject to general legal and equitable principles with
respect to the availability of particular remedies.
SECTION 3.04. FINANCIAL INFORMATION. (a) The consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of December
31, 1997 and the related consolidated statements of earnings and changes in
financial position for the fiscal year then ended, reported on by Arthur
Andersen & Co. and set forth in the Company's annual report on Form 10-K for the
fiscal year ended December 31, 1997, a copy of which has been delivered to each
of the Lenders, fairly present, in conformity with GAAP, the consolidated
financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and changes in financial
position for such fiscal year.
(b) The unaudited consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of September 30, 1998 and the related
unaudited consolidated statements of earnings and changes in financial position
for the nine months then ended, set forth in the Company's quarterly report on
Form 10-Q for the fiscal quarter ended September 30, 1998, a copy of which has
been delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in
paragraph (a) of this Section 3.04, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and changes in financial position for such nine month
period (subject to normal year-end adjustments).
SECTION 3.05. LITIGATION. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of a final adverse decision which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Company and its Consolidated
<PAGE> 42
38
Subsidiaries taken as a whole or which in any manner draws into question the
validity of this Agreement.
SECTION 3.06. COMPLIANCE WITH ERISA. The Company and each
ERISA Affiliate has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code relating to the Plans, and has not incurred any liability to the PBGC
or a Plan under Title IV of ERISA.
SECTION 3.07. TAXES. United States Federal income tax returns
of the Company and its Subsidiaries have been examined and closed through the
fiscal year ended January 3, 1988. The Company and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all material taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary which the Company or any Subsidiary is not disputing in a good
faith manner. The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
SECTION 3.08. SUBSIDIARIES. Attached hereto as Schedule 3.08
is a schedule which correctly identifies all Subsidiaries as of the date of this
Agreement. Except as noted on Schedule 3.08, all of the issued and outstanding
shares of the capital stock of each Subsidiary is duly issued and outstanding,
fully paid and non-assessable and except for directors' qualifying shares and
shares issued solely for the purpose of satisfying local requirements concerning
the minimum number of shareholders is owned by the Company or a Subsidiary free
and clear of any mortgage, pledge, lien or encumbrance.
SECTION 3.09. REPRESENTATIONS AND WARRANTIES OF EACH BORROWING
SUBSIDIARY. Each Borrowing Subsidiary shall be deemed by the execution and
delivery of a Borrowing Subsidiary Agreement to have represented and warranted
as of the date thereof as follows:
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and is
duly qualified to do business and in good standing in each other jurisdiction in
which it owns property and/or conducts its business and in which failure to be
so qualified and in
<PAGE> 43
39
good standing would have a materially adverse effect on the business of such
Borrowing Subsidiary.
(b) The execution, delivery and performance by it of its
Borrowing Subsidiary Agreement, and the performance by it of the provisions of
this Agreement applicable to it, are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i) its
charter or by-laws (or the equivalent thereof) or (ii) any law or regulation or
any agreement, judgment, injunction, order, decree or other instrument binding
on or affecting it.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the due
execution, delivery and performance by it of its Borrowing Subsidiary Agreement
or for the performance by it of the provisions of this Agreement applicable to
it, except for those which have been duly obtained or made and are in full force
and effect.
(d) It is not in breach of or default under any agreement to
which it is a party or which is binding on it or any of its assets to an extent
or in a manner which would have a material adverse effect on its ability to
perform its obligations hereunder after taking into consideration its other
financial obligations.
(e) This Agreement is a legal, valid and binding obligation of
such Borrowing Subsidiary enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of the rights of its creditors
generally and subject to general legal and equitable principles with respect to
the availability of particular remedies.
(f) The proceeds of each Loan made to it will be used solely
for general corporate purposes, including the acquisition of new businesses.
SECTION 3.10. FEDERAL RESERVE REGULATIONS. (a) Neither any
Borrower nor any Subsidiary is engaged principally, or as a substantial part of
its activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock (within the meaning of Regulation U).
(b) No part of the proceeds of any Loan has been or will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any
<PAGE> 44
40
manner or for any purpose that has resulted or will result in a violation of
Regulation U.
SECTION 3.11. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither any Borrower nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.12. ENVIRONMENTAL AND SAFETY MATTERS. (a) With
respect to all facilities owned and operated by the Company and its
Subsidiaries, or at which the Company or any of its Subsidiaries has a leasehold
interest, other than any facilities referred to in (b) below, except as set
forth in Schedule 3.12(a) (i) the Company and each Subsidiary is in compliance
in all material respects with all Federal, state, local and other statutes,
ordinances, orders, judgments, rulings and regulations relating to environmental
pollution or to environmental regulation or control or to employee health or
safety (collectively "Environmental Laws") except where the failure to be in
compliance so would not be reasonably likely, individually or in the aggregate,
to result in a Material Adverse Effect; (ii) neither the Company nor any
Subsidiary has received notice of any material failure so to comply, which
non-compliance neither has been remedied nor is the subject of the Company's
good faith efforts to achieve compliance, except where the failure to be in
compliance would not be reasonably likely, individually or in the aggregate, to
result in a Material Adverse Effect and (iii) the Company is aware of no events,
conditions or circumstances involving environmental pollution or contamination
or employee health or safety that in its judgment would be reasonably likely to
result in a Material Adverse Effect.
(b) With respect to the Federally owned or operated facilities
listed on Schedule 3.12(b) at which the Company and/or its Subsidiaries are the
management and operations contractor or such facilities at which the Company
and/or its Subsidiaries may act as such after the date of this Agreement, except
as set forth in Schedule 3.12(c) neither the Company nor any of its Subsidiaries
has received notice of any claim under any Environmental Laws which in its
judgment would be reasonably likely to result in a Material Adverse Effect.
SECTION 3.13. YEAR 2000 COMPLIANCE. Any reprogramming required
to permit the proper functioning, in and following the year 2000, of (i) the
Company's and
<PAGE> 45
41
each Subsidiary's computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
Company's or any Subsidiary's systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by July 1, 1999
except to the extent that the failure to complete such reprogramming and testing
could not in the aggregate result in a Material Adverse Effect. The cost to the
Company and the Subsidiaries of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Company and the
Subsidiaries (including, without limitation, reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Company and each Subsidiary are and, with ordinary course
upgrading, replacement and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Company and each Subsidiary to conduct
its business without a Material Adverse Effect.
SECTION 3.14. NO MATERIAL ADVERSE CHANGE. Since December 31,
1997, there has occurred no event, condition or change in or affecting the
Company or the Subsidiaries that, individually or in the aggregate with other
such events, conditions or changes, has had or could reasonably be expected to
have a Material Adverse Effect.
SECTION 3.15. SOLVENCY. Immediately after the consummation of
the Transactions, (i) the fair value of the assets of the Company and the
Subsidiaries on a consolidated basis, at a fair valuation, will exceed their
debts and liabilities, subordinated, contingent or otherwise; (ii) the present
fair saleable value of the property of the Company and the Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
their probable liability on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (iii) the Company and the Subsidiaries will on a consolidated basis be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) the Company
and the Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
<PAGE> 46
42
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or Section 2.04, as
applicable.
(b) The representations and warranties set forth in Article
III (except in the case of a refinancing that does not increase the
aggregate principal amount of Loans of any Lender outstanding, the
representations set forth in Section 3.05 and 3.12) hereof shall be
true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly
relate to an earlier date.
(c) At the time of and immediately after such Borrowing no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. CLOSING DATE. On the Closing Date the following
conditions shall have been satisfied; PROVIDED that the condition set forth in
paragraph (d) below shall not be satisfied on the Closing Date but shall be
satisfied prior to the date of the first Borrowing hereunder:
(a) The Administrative Agent shall have received the favorable
written opinion of Murray Gross, Esq., dated the Closing Date and addressed to
the Lenders and satisfactory to Cravath, Swaine & Moore, counsel for the
Administrative Agent, to the effect set forth in Exhibit D-1 hereto.
(b) The Administrative Agent shall have received (i) a copy of
the certificate of incorporation,
<PAGE> 47
43
including all amendments thereto, of the Company, certified as of a recent date
by the Secretary of State of its state of incorporation, and a certificate as to
the good standing of the Company as of a recent date from such Secretary of
State; (ii) a certificate of the Clerk or an Assistant Clerk of the Company
dated the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the Closing Date and
at all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company authorizing
the execution, delivery and performance of this Agreement and the Borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
incorporation referred to in clause (i) above has not been amended since the
date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to such clause (i) and (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Company; and (iii) a
certificate of another officer of the Company as to the incumbency and specimen
signature of the Clerk or Assistant Clerk executing the certificate pursuant to
(ii) above.
(c) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer of the
Company, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(d) All requisite Governmental Authorities shall have approved
or consented to the Transactions and the other transactions contemplated in
connection therewith to the extent required, in each case to the extent failure
to obtain such consent or approval could have a Material Adverse Effect or could
materially and adversely affect the rights or interests of the Lenders or the
Administrative Agent; all applicable appeal periods for such approvals and
consents shall have expired; and there shall be no action by any Governmental
Authority, actual or threatened, that has a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the Transactions or
the other transactions contemplated in connection therewith.
(e) The Lenders shall have received a pro forma consolidated
balance sheet of the Company as of September 30, 1998, after giving effect to
the Transactions and the
<PAGE> 48
44
consummation of the other transactions contemplated hereby, which shall not be
materially inconsistent with the projections previously provided to the Lenders.
(f) Any amendments and waivers under the Existing Facilities
or other agreements of the Company, the Subsidiaries or the Target necessary to
permit the Transactions and the other transactions contemplated hereby shall
have been obtained and be effective.
SECTION 4.03. FIRST BORROWING BY EACH BORROWING SUBSIDIARY. On
the first date on which Loans are made to each Borrowing Subsidiary:
(a) The Administrative Agent shall have received the favorable
written opinion of Murray Gross, Esq., dated the date of such Loans,
addressed to the Lenders and satisfactory to Cravath, Swaine & Moore,
counsel for the Administrative Agent, to the effect set forth in
Exhibit D-2 hereto.
(b) Each Lender shall have received a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.
(c) Such Loans shall not violate any law, rule or regulation
binding on any of the Lenders.
(d) Each Lender shall have received from the Company an
unaudited consolidated balance sheet and related consolidated
statements of earnings and changes in financial position for the fiscal
year most recently ended of such Borrowing Subsidiary.
ARTICLE V
COVENANTS
The Company covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Facility Fees or any other amounts
payable hereunder shall be unpaid, unless the Required Lenders shall otherwise
consent in writing:
SECTION 5.01. INFORMATION. The Company will give the
Administrative Agent prompt written notice of any change in any Rating that
results in a change in the Category on which the Applicable Percentage is based.
The Company will deliver to each of the Lenders:
<PAGE> 49
45
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of earnings and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Arthur Andersen & Co. or other
independent public accountants of nationally recognized standing acceptable to
the Required Lenders and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the financial condition and
results of operations of the Company and the Consolidated Subsidiaries in
accordance with GAAP;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the Company,
a consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of earnings
and cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, compliance with GAAP and
consistency by a Financial Officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 5.06 and 5.07 on the date of such financial
statements and (ii) stating whether there exists on the date of such certificate
any Default and, if any Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take with respect
thereto;
(d) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
<PAGE> 50
46
(e) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all annual or
quarterly reports and upon request by any Lender copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) which the Company shall have filed with the
Securities and Exchange Commission;
(g) (i) as soon as possible after, and in any event within 30
days after the Company or any ERISA Affiliate knows or has reason to know that,
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Company to the PBGC in an aggregate amount exceeding $5,000,000, a statement of
a Financial Officer setting forth details as to such Reportable Event and the
action that the Company proposes to take with respect thereto, together with a
copy of the notice, if any, of such Reportable Event given to the PBGC, (ii)
promptly after receipt thereof, a copy of any notice that the Company or any
ERISA Affiliate may receive from the PBGC relating to the intention of the PBGC
to terminate any Plan or Plans (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Code Section 414) or to appoint a trustee to administer any such Plan,
(iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a Financial Officer setting
forth details as to such failure and the action that the Company proposes to
take with respect thereto, together with a copy of any such notice given to the
PBGC and (iv) promptly and in any event within 30 days after receipt thereof by
the Company or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Company or any ERISA Affiliate concerning
(A) the imposition of Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or in reorganization,
both within the meaning of Title IV of ERISA; and
(h) from time to time such additional information regarding
the financial position or business of the Company as any Lender may reasonably
request.
<PAGE> 51
47
SECTION 5.02. CORPORATE EXISTENCE; BUSINESSES AND PROPERTIES.
(a) The Company will, and will cause each Borrowing Subsidiary to, do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its corporate existence.
(b) Except to the extent that failure to do so would not have
a Material Adverse Effect, the Company will, and will cause each Borrowing
Subsidiary to, (i) do or cause to be done all things necessary to preserve,
renew and keep in full force and effect all rights, licenses, permits and
franchises material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, (ii) comply with all laws and regulations
applicable to it and (iii) conduct its business in substantially the same manner
as heretofore conducted or as at the time permitted under applicable law.
SECTION 5.03. INSURANCE. The Company will, and will cause each
Subsidiary to, keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, and maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies similarly situated
and in the same or similar businesses.
SECTION 5.04. LITIGATION AND OTHER NOTICES. The Company will
give each Lender prompt written notice of the following:
(a) the filing or commencement of, or any written threat or
written notice of intention of any person to file or commence, any
action, suit or proceeding which could reasonably be expected to result
in a Material Adverse Effect; and
(b) any development in the business or affairs of the Company
or any Subsidiary that has resulted in a Material Adverse Effect.
SECTION 5.05. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. The Company will, and will cause each Subsidiary to, maintain
financial records in accordance with GAAP and, upon reasonable notice, at all
reasonable times, permit (a) any authorized representative designated by any
Lender to discuss the affairs, finances and condition of the Company and the
Subsidiaries with a Financial Officer of the Company and such other officers as
the Company shall deem appropriate and (b) any authorized representative
designated by the Administrative
<PAGE> 52
48
Agent or the Required Lenders to visit and inspect the properties of the Company
and of any Subsidiary.
SECTION 5.06. FIXED CHARGE COVERAGE. The Company will not
permit the ratio of (a) Consolidated EBIT to (b) Consolidated Net Interest
Expense for any period of four consecutive fiscal quarters ending on the last
day of any fiscal quarter to be less than 5:1.
SECTION 5.07. NET DEBT TO CAPITALIZATION RATIO. The Company
will not permit on any date the ratio of (a) Consolidated Net Indebtedness on
such date to (b) the sum of (i) Shareholders' Equity on such date and (ii)
Consolidated Net Indebtedness on such date to be greater than 0.55:1.00.
SECTION 5.08. NEGATIVE PLEDGE. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien securing
Indebtedness on any asset now owned or hereafter acquired by it, except:
(a) Liens on all or part of the assets of Consolidated
Subsidiaries securing Indebtedness owing by Consolidated Subsidiaries to the
Company and Consolidated Subsidiaries;
(b) mortgages on real property or security interests in
personal property securing Indebtedness of the Company and Consolidated
Subsidiaries in an aggregate amount not exceeding ten percent (10%) of the
consolidated total assets of the Company and the Consolidated Subsidiaries;
(c) Liens to secure taxes, assessments and other governmental
charges or claims for labor, material or supplies to the extent that payment
thereof shall not at the time be required to be made in accordance with Section
3.07 hereof;
(d) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age, pension or
other social security obligations;
(e) Liens in respect of judgments or awards not exceeding
$1,000,000 in the aggregate at any time, and any other Liens with respect to
which the execution or enforcement thereof is being effectively stayed and the
claims secured thereby are being contested in good faith by appropriate
proceedings;
<PAGE> 53
49
(f) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens, in existence less than 120 days from the date
of creation thereof;
(g) encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the Company or a Consolidated Subsidiary is a party, and other similar
encumbrances none of which in the opinion of the Company interferes materially
with the use of the property in the ordinary conduct of the business of the
Company and the Consolidated Subsidiaries; and similar encumbrances on interests
in real estate located outside the United States, which defects do not
individually or in the aggregate have a material adverse effect on the business
of the Company individually or of the Company and the Consolidated Subsidiaries
on a consolidated basis; and
(h) to the extent that the value of all Margin Stock owned by
the Company and its Consolidated Subsidiaries (determined in accordance with
Regulation U) exceeds 25% of the value of the total assets of the Company and
its Consolidated Subsidiaries subject to this Section 5.08 (as so determined),
Liens on such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.08).
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a)
The Company will not (i) consolidate or merge with or into any other person
unless (A) the Company shall be the surviving entity and (B) immediately
thereafter no Default or Event of Default shall have occurred and be continuing
or (ii) sell, lease or otherwise transfer all or any substantial part of its
assets to any other person. The Company will not sell, lease or otherwise
transfer any of its assets to any other person except for full and adequate
consideration.
(b) No Borrowing Subsidiary will (i) consolidate or merge with
or into any other person unless (A) if the surviving entity shall be other than
such Borrowing Subsidiary, (x) such surviving entity or the Company shall have
assumed in writing all obligations of such Borrowing Subsidiary relating to this
Agreement and (y) such surviving entity shall be 100% owned by the Company and
(B) no Default or Event of Default shall have occurred and be continuing either
before or immediately after such consolidation or merger or (ii) sell, lease or
otherwise transfer all or any substantial part of its assets to any other
person. No Borrowing Subsidiary will
<PAGE> 54
50
sell, lease or otherwise transfer any of its assets to any other person except
for full and adequate consideration.
(c) Notwithstanding anything in the foregoing to the contrary,
to the extent that the value of all Margin Stock owned by the Company and its
Consolidated Subsidiaries (determined in accordance with Regulation U) exceeds
25% of the value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.09 (as so determined), the restrictions
contained in subsections (a)(ii) and (b)(ii) of this Section 5.09 shall not
apply to such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.09).
SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will not,
and will not permit its Subsidiaries to, own Margin Stock to the extent the
value of such Margin Stock would exceed 28% of the value of the total assets of
the Company and its Consolidated Subsidiaries.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each
an "Event of Default"):
(a) any representation or warranty made or deemed made in or
in connection with the execution and delivery of this Agreement or the
Borrowings hereunder or any representation, warranty, statement or
information contained in any report, certificate, financial statement
or other instrument furnished in connection with this Agreement shall
prove to have been incorrect in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Facility Fee or any other amount (other than an amount
referred to in paragraph (b) above) due hereunder, when and as the same
shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;
<PAGE> 55
51
(d) default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Sections 5.02 or
5.06 through 5.09;
(e) default shall be made in the due observance or performance
of any covenant, condition or agreement contained herein (other than
those specified in paragraphs (b), (c) or (d) above) and such default
shall continue unremedied for a period of 10 days after notice thereof
from the Administrative Agent or any Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in an aggregate principal amount in excess of $15,000,000,
when and as the same shall become due and payable, or (ii) fail to
observe or perform any other term, covenant, condition or agreement
contained in any agreement or instrument evidencing or governing any
such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or any
Subsidiary, or of a substantial part of the property or assets of the
Company or a Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or
for a substantial part of the property or assets of the Company or a
Subsidiary or (iii) the winding up or liquidation of the Company or any
Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
<PAGE> 56
52
or any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or the filing of any
petition described in paragraph (g) above, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or
for a substantial part of the property or assets of the Company or any
Subsidiary, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more final and nonappealable judgments for the
payment of money in an aggregate amount in excess of $5,000,000 shall
be rendered against the Company, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of the Company or any Subsidiary to
enforce any such final and nonappealable judgment or judgments
aggregating in excess of $5,000,000;
(j) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(l) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Company to the PBGC or to a Plan in an aggregate amount
exceeding $5,000,000 and, within 30 days after the reporting of any
such Reportable Event to the Administrative Agent, the Administrative
Agent shall have notified the Company in writing that (i) the Required
Lenders have made a determination that, on the basis of such Reportable
Event or Reportable Events or the failure to make a required payment,
there are reasonable grounds (A) for the termination of such Plan or
Plans by the PBGC, (B) for the appointment by the appropriate United
States District Court of a trustee to administer such Plan or Plans or
(C) for the imposition of a lien in favor of a Plan and (ii) as a
result thereof an Event of Default exists hereunder; or a trustee shall
be appointed by a United States
<PAGE> 57
53
District Court to administer any such Plan or Plans; or the PBGC shall
institute proceedings to terminate any Plan or Plans;
(k) (i) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower or
such ERISA Affiliate does not have reasonable grounds for contesting
such Withdrawal Liability or is not in fact contesting such Withdrawal
Liability in a timely and appropriate manner and (iii) the amount of
the Withdrawal Liability specified in such notice, when aggregated with
all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or
dates of such notification), exceeds $5,000,000 or requires payments
exceeding $1,000,000 in any year;
(1) the Company or any ERISA Affiliate 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 solely as a result of such reorganization or
termination the aggregate annual contributions of the Company and its
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $1,000,000;
(m) any guarantee purported to be created by Article VII
hereof shall cease to be, or shall be asserted by the Company not to
be, a valid and enforceable guarantee of the Guaranteed Obligations; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and
<PAGE> 58
54
any unpaid accrued Facility Fees and all other liabilities of the Borrowers
accrued hereunder, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived anything contained herein to the contrary notwithstanding; and,
in any event with respect to the Company described in paragraph (g) or (h)
above, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Facility Fees and all other liabilities of the Borrowers accrued
hereunder shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived anything contained herein to the contrary notwithstanding.
ARTICLE VII
GUARANTEE
The Company unconditionally and irrevocably guarantees the due
and punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the
Guaranteed Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligations.
The Company waives presentment to, demand of payment from and
protest to the Borrowing Subsidiaries of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender or the Administrative Agent to assert any claim or
demand or to enforce any right or remedy against the Borrowing Subsidiaries
under the provisions of this Agreement or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement,
any guarantee or any other agreement; or (c) the failure of any Lender or the
Administrative Agent to exercise any right or remedy against any other guarantor
of the Guaranteed Obligations.
The Company further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Administrative Agent or any Lender to
<PAGE> 59
55
any security, if any, held for payment of the Guaranteed Obligations or to any
balance of any deposit account or credit on its books, in favor of the Borrowing
Subsidiaries or any other person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of the Company
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Administrative Agent or any Lender to assert any claim or demand
or to enforce any remedy under this Agreement, any guarantee or any other
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or omission which may or might in
any manner or to any extent vary the risk of the Company or otherwise operate as
a discharge of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives
any defense based on or arising out of any defense available to the Borrowing
Subsidiaries, including any defense based on or arising out of any disability of
the Borrowing Subsidiaries, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrowing Subsidiaries, other than final payment in full
of the Guaranteed Obligations. The Administrative Agent and the Lenders may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or non-judicial sales, or exercise any other right or remedy
available to them against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company hereunder except
to the extent the Guaranteed Obligations have been fully and finally paid. The
Company waives any defense arising out of any such election even though such
election operates to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of the Company against any Borrowing
Subsidiary or any security.
The Company further agrees that its guarantee shall continue
to be effective or be reinstated, as the
<PAGE> 60
56
case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Lender upon the bankruptcy or reorganization of any Borrowing Subsidiary
or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by the Administrative Agent or any Lender, forthwith pay or cause to be
paid to the Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.
Upon payment by the Company of any sums to the Administrative
Agent or any Lender, as provided above, all rights of the Company against the
other Borrowers arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment
to the prior indefeasible payment in full of all the Guaranteed Obligations to
the Administrative Agent and the Lenders.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such
Lender or holder and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrowers of any Event of Default of which the Administrative Agent has actual
knowledge acquired in connection with its
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57
agency hereunder; and (c) to distribute promptly to each Lender copies of all
notices, financial statements and other materials delivered by the Borrowers
pursuant to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his or her own gross negligence or
willful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrowers of any of the terms, conditions,
covenants or agreements contained in this Agreement. The Administrative Agent
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or other instruments
or agreements. The Administrative Agent may deem and treat the Lender that makes
any Loan as the holder of the indebtedness resulting therefrom for all purposes
hereof until it shall have received notice from such Lender, given as provided
herein, of the transfer thereof. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrowers on account of the failure of or
delay in performance or breach by any other Lender of any of its obligations
hereunder or to any Lender on account of the failure of or delay in performance
or breach by any other Lender or the Borrowers of any of their respective
obligations hereunder or in connection herewith. The Administrative Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall be under no duty to take any
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58
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Company. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent reasonably acceptable to the Company. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then, the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Administrative Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the Administrative
Agent and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrowers or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its pro rata share (based on its Commitment
hereunder or, if the Commitments shall have been terminated, the amount of its
outstanding Loans) of any out-of-pocket expenses incurred for the benefit of the
Lenders by the Administrative Agent, including reasonable counsel fees and
compensation of agents paid for services rendered on behalf of the Lenders,
which shall not have been reimbursed by the Borrowers and (ii) to indemnify and
hold
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59
harmless the Administrative Agent and any of its directors, officers, employees
or agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as the Administrative Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by it under this Agreement to the
extent the same shall not have been reimbursed by the Borrowers; PROVIDED that
no Lender shall be liable to the Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents. Each Lender agrees that any allocation made in good faith
by the Administrative Agent of expenses or other amounts referred to in this
paragraph between this Agreement and the Existing Facilities shall be conclusive
and binding for all purposes.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except as otherwise expressly provided
herein, notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed or
sent by telecopy, as follows:
(a) if to any Borrower, to EG&G, Inc., 45 William Street,
Wellesley, Massachusetts 02181, Attention of Treasurer, (Telecopy No.
617-431-4279);
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(b) if to the Administrative Agent, to it at One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081, Attention of
Sharon Hamboussi, (Telecopy No. 212-552-5662); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made by the Borrowers herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Lenders and shall survive the making by the Lenders of the Loans regardless
of any investigation made by the Lenders or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any Facility Fee or any other amount payable under this Agreement is
outstanding and unpaid or the Commitments have not been terminated.
SECTION 9.03. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Company and the Administrative
Agent and when the Administrative Agent shall have received copies hereof
(telecopied or otherwise) which, when taken together, bear the signature of each
Lender, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Borrowers shall not have the right to assign any rights hereunder or any
interest herein without the prior consent of all the Lenders.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any party that are contained in this
Agreement shall bind and inure to the benefit of its successors and assigns.
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(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
PROVIDED, HOWEVER, that (i) except in the case of an assignment to a Lender or a
domestic Affiliate of a Lender, the Company must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld), (ii) the
amount of the Commitment (or, after the Termination Date, the outstanding Loans)
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $10,000,000, (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, and a processing and recordation fee of
$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto (but shall continue to be entitled to the benefits of Sections
2.13, 2.15, 2.20 and 9.05, as well as to any Facility Fees accrued for its
account hereunder and not yet paid)). Notwithstanding the foregoing, any Lender
assigning its rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in such case shall
retain its rights hereunder in respect of any Loans so retained until such Loans
have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim,
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(ii) except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto or the financial condition of the Borrowers or the
performance or observance by the Borrowers of any obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its
offices in the City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and the principal amount of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of manifest error
and the Borrowers, the Administrative Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by each party hereto, at any reasonable time and from
time to time upon reasonable prior notice.
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(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together with an
Administrative Questionnaire completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Company to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register.
(f) Each Lender may sell participations to one or more banks
or other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.13, 2.15 and 2.20 to the same
extent as if it was the selling Lender (but limited to the amount that could
have been claimed by the selling Lender had it continued to hold the interest of
such participating bank or other entity), except that all claims made pursuant
to such Sections shall be made through such selling Lender, and (iv) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such selling Lender in connection with such Lender's
rights and obligations under this Agreement, and such selling Lender shall
retain the sole right to enforce the obligations of the Borrowers relating to
the Loans and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers decreasing
any fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, extending any scheduled principal payment date
or date fixed for the payment of interest on the Loans or changing or extending
the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender;
PROVIDED that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall execute an agreement whereby such
assignee or participant
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64
shall agree (subject to customary exceptions) to preserve the confidentiality of
any such information.
(h) The Borrowers shall not assign or delegate any rights and
duties hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of
its rights under this Agreement to a Federal Reserve Bank; PROVIDED that no such
pledge shall release any Lender from its obligations hereunder or substitute any
such Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrowers agree,
jointly and severally, to pay the fees and disbursements of counsel for the
Administrative Agent in connection with entering into this Agreement and in
connection with any amendments, modifications or waivers of the provisions
hereof, and agree, jointly and severally, to pay the reasonable out-of-pocket
expenses incurred by the Administrative Agent or any Lender in connection with
the enforcement or protection of their rights in connection with this Agreement
or the Loans made hereunder, including the reasonable fees and disbursements of
counsel for the Administrative Agent or any Lender.
(b) The Borrowers agree, jointly and severally, to indemnify
the Administrative Agent, each Lender, each of their Affiliates and the
directors, officers, employees and agents of the foregoing (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees and expenses, incurred by or asserted against
any Indemnitee arising out of (i) the execution or delivery of this Agreement or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions or the other transactions contemplated thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are finally determined by a court of
<PAGE> 69
65
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee or from such Indemnitee's violation of the Federal
securities laws prohibiting insider trading.
(c) The provisions of this Section shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section shall be
payable on written demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. WAIVERS; AMENDMENT. (a) No failure or delay of
the Administrative Agent or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower or any Subsidiary in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders; PROVIDED,
HOWEVER, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan, or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender affected thereby, (ii) increase the Commitment or
decrease the Facility Fee of any Lender or extend any date for payment thereof
without the prior written consent of such
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66
Lender, (iii) amend or modify the provisions of Section 2.16 or Section 9.04(h),
the provisions of this Section or the definition of the "Required Lenders," or
(iv) release the Company from any of its obligations under Article VII hereof
without the prior written consent of each Lender; PROVIDED FURTHER, HOWEVER,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent hereunder without the prior written consent
of the Administrative Agent. Each Lender shall be bound by any waiver, amendment
or modification authorized by this Section and any consent by any Lender
pursuant to this Section shall bind any assignee of its rights and interests
hereunder.
SECTION 9.08. ENTIRE AGREEMENT. This Agreement constitutes the
entire contract among the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 9.09. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 9.12. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply
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67
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or account of the Company and any Borrowing Subsidiary now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Company after such setoff and application made by such Lender, but
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any New
York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for
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68
notices in Section 9.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.14. WAIVER OF JURY TRIAL. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certification in this Section.
SECTION 9.15. ADDITION OF BORROWING SUBSIDIARIES. Each wholly
owned Subsidiary of the Company which shall deliver to the Administrative Agent
a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company
shall, upon such delivery and without further act, become a party hereto and a
Borrower hereunder with the same effect as if it had been an original party to
this Agreement.
SECTION 9.16. CONFIDENTIALITY. Each Lender and the
Administrative Agent agree to keep confidential the Information (as defined
below), except that any such Lender and the Administrative Agent shall be
permitted to disclose Information (a) to such of its officers, directors,
employees, agents and representatives as need to know such Information; (b) to
the extent required by applicable laws and regulations or by any subpoena or
similar legal process, including with respect to the enforcement of this
Agreement, PROVIDED that such Lender and the Administrative Agent shall use
reasonable efforts to notify the Company of such prospective disclosure a
reasonable time prior to any such disclosure and shall take such actions
reasonably requested by the Company to assist the Company in obtaining a
protective order or confidential treatment with respect to such Information (it
being understood that failure to give such notice after having made any such
reasonable efforts shall not result in any liability hereunder to such Lender or
the Administrative Agent, as the case may be); (c) to the extent requested by
any bank regulatory authority; (d) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Agreement, (ii)
becomes available to such Lender or the Administrative Agent on a
non-confidential basis from a
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69
source other than the Company and its Affiliates or (iii) was available to such
Lender or the Administrative Agent on a non-confidential basis prior to its
disclosure to such Lender or the Administrative Agent by the Company or its
Affiliates; (e) to any actual or prospective assignee or participant in any
rights of such Lender or the Administrative Agent under this Agreement, provided
that such assignee or participant delivers to the Administrative Agent or such
Lender, as applicable, a confidentiality letter containing substantially the
undertakings set forth in this Section 9.16 and (f) to the extent the Company
shall have consented to such disclosure in writing. As used in this Section
9.16, "INFORMATION" shall mean any materials, documents and information (other
than annual reports, prospectuses, proxy statements and other materials
distributed to the Company's shareholders) that the Company or any of its
Subsidiaries may have furnished or may hereafter furnish to the Administrative
Agent or any Lender in connection with Sections 4.03(d), 5.01, 5.04 and 5.05 of
this Agreement.
SECTION 9.17. COLLATERAL. Each of the Lenders represents to
each of the other Lenders that it in good faith is not relying upon any Margin
Stock (as defined in Regulation U) as collateral in the extension or maintenance
of the credit provided for in this Agreement.
SECTION 9.18. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, all
Charges payable to such Lender shall be limited to the Maximum Rate.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
<PAGE> 74
EG&G, INC.,
by
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Name:
Title:
<PAGE> 75
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
for the Lenders,
by
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Name:
Title:
<PAGE> 76
BANKBOSTON N.A.,
by
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Name:
Title:
<PAGE> 77
THE FIRST NATIONAL BANK OF CHICAGO,
by
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Name:
Title:
<PAGE> 78
THE NORTHERN TRUST COMPANY,
by
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Name:
Title:
<PAGE> 79
STANDARD CHARTERED BANK,
by
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Name:
Title:
by
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Name:
Title:
