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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
/X/ Quarterly Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended March 30, 1997
/ / Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ............ to ...............
Commission File Number 1-2833
RAYTHEON COMPANY
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-1760395
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
141 SPRING STREET, LEXINGTON, MASSACHUSETTS 02173
(Address of Principal Executive Offices) (Zip Code)
(617) 862-6600
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes x No
NUMBER OF COMMON SHARES OUTSTANDING AT MARCH 30, 1997: 236,286,918
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RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
BALANCE SHEETS (UNAUDITED)
March 30, 1997 Dec. 31, 1996
-------------- -------------
(In thousands)
ASSETS
Cash and marketable securities $ 133,543 $ 138,821
Accounts receivable .......................... 843,926 808,715
Federal and foreign income taxes,
including deferred ......................... 178,811 246,120
Contracts in process, less progress
payments ................................... 2,817,393 2,592,006
Inventories .................................. 1,708,748 1,590,967
Prepaid expenses ............................. 243,647 227,266
----------- -----------
Total current assets ................ 5,926,068 5,603,895
Property, plant and equipment, net ........... 1,853,278 1,802,012
Other assets, net ............................ 3,717,073 3,720,169
----------- -----------
$11,496,419 $11,126,076
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Notes payable and current portion
of long-term debt .......................... $ 2,403,482 $ 2,226,935
Accounts payable ............................. 1,165,050 1,125,881
Advance payments, less contracts in
process .................................... 413,644 341,326
Accrued expenses ............................. 965,293 997,691
----------- -----------
Total current liabilities ........... 4,947,469 4,691,833
Accrued retiree benefits ..................... 246,968 249,992
Federal and foreign income taxes,
including deferred ......................... 85,765 85,765
Long-term debt ............................... 1,498,530 1,500,476
Stockholders' equity ......................... 4,717,687 4,598,010
----------- -----------
$11,496,419 $11,126,076
=========== ===========
The accompanying notes are an integral part of the financial statements.
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RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
STATEMENTS OF INCOME (Unaudited)
Three Months Ended
March 30, 1997 .March 31, 1996
(In thousands except per share data)
Net sales ............................. $ 2,899,148 $ 2,787,606
----------- -----------
Cost of sales ......................... 2,220,526 2,141,289
Administrative and selling expenses ..... 260,065 264,728
Research and development expenses ....... 79,075 87,462
----------- -----------
Total operating expenses .............. 2,559,666 2,493,479
----------- -----------
Operating income .................... 339,482 294,127
----------- -----------
Interest expense .................... 68,875 54,163
Interest and dividend income ........ (5,675) (20,277)
Other income, net ................... (2,084) (21,827)
----------- -----------
Non-operating expense , net ......... 61,116 12,059
----------- -----------
Income before taxes ................. 278,366 282,068
Federal and foreign income taxes .... 94,956 95,582
----------- -----------
Net income .......................... $ 183,410 $ 186,486
=========== ===========
Earnings per common share ........... $ 0.78 $ 0.78
Average number of common shares
outstanding during period ......... 236,277 240,093
Dividends declared per common share . $ 0.20 $ 0.20
The accompanying notes are an integral part of the financial statements.
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RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
STATEMENTS OF CASH FLOWS (Unaudited)
Three Months Ended
March 30 1997 March 31, 1996
------------- --------------
(In thousands)
Cash flows from operating activities:
Net income $ 183,410 $ 186,486
Adjustments to reconcile net income to
net cash used in operating activities
Depreciation and amortization 94,170 87,251
Sale of receivables 327,100 64,200
Other adjustments, net of the effect
of acquired companies (609,730) (588,197)
--------- ----------
Net cash used in operating activities (5,050) (250,260)
--------- ---------
Cash flows from investing activities:
Additions to property, plant and equipment (108,407) (103,980)
Payment for purchase of acquired companies,
net of cash acquired (5,777) 0
All other, net (36,103) (38,010)
--------- ---------
Net cash used in investing activities (150,287) (141,990)
--------- ---------
Cash flows from financing activities:
Change in short-term debt 176,547 490,769
Dividends (47,235) (47,859)
Purchase of treasury shares (6,848) (96,104)
Proceeds under common stock plans 10,376 17,083
All other, net 7,949 1,576
--------- --------
Net cash provided by financing activities 140,789 365,465
--------- --------
Effect of foreign exchange rates on cash (946) (334)
--------- ---------
Net decrease in cash and cash
equivalents (15,494) (27,119)
Cash and cash equivalents at beginning
of year 137,379 208,614
--------- ---------
Cash and cash equivalents at end of period $ 121,885 $ 181,495
========= =========
The accompanying notes are an integral part of the financial statements.
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RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
NOTES TO FINANCIAL STATEMENTS
(1) Details of certain balance sheet accounts are as follows:
March 30, 1997 Dec. 31, 1996
(In thousands)
Cash and marketable securities
Cash and cash equivalents $ 121,885 $ 137,379
Marketable securities 11,658 1,442
---------- ----------
Total cash and marketable securities $ 133,543 $ 138,821
========== ==========
Inventories
Finished goods $ 650,764 $ 616,660
Work in process 736,238 650,132
Materials and purchased parts 479,723 482,152
Excess of current cost over
LIFO values (157,977) (157,977)
---------- ----------
Total inventories $1,708,748 $1,590,967
========== ==========
Property, plant and equipment
At cost $4,547,144 $4,490,359
Accumulated depreciation and
amortization (2,693,866) (2,688,347)
---------- ----------
Net property, plant and equipment $1,853,278 $1,802,012
========== ==========
Stockholders' equity
Preferred stock, no outstanding shares $ - $ -
Common stock, outstanding shares 236,287 236,250
Additional paid-in capital 317,444 307,451
Equity adjustments (31,992) (11,966)
Retained earnings 4,195,948 4,066,275
---------- ----------
Total stockholders' equity $4,717,687 $4,598,010
========== ==========
The accompanying notes are an integral part of the financial statements.
(2) In connection with the sale of receivables as noted in the Statement of Cash
Flows, the following special purpose entities were established in accordance
with Statement of Financial Accounting Standard No. 125, Accounting for
Transfers and Servicing of Financial Assets and Extinquishments of Liabilities:
Raytheon Aircraft Receivables Corporation, Raytheon Commercial Appliances
Finance Corporation, Raytheon Appliances/Amana Receivables Corporation, Raytheon
Commercial Appliances Receivables Corporation and Raytheon Engineers &
Constructors Receivables Corporation.
(3) The company will adopt Statement of Financial Accounting Standard No. 128,
Earnings per Share, in the fourth quarter of 1997. The adoption is not
expected to have a material effect on the company's financial position, results
of operations, or earnings per share.
(4) The information furnished has been prepared from the accounts without audit.
In the opinion of management, the information reflects all adjustments, which
are of a normal recurring nature, necessary for a fair presentation of the
financial statements for the interim periods.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
First Quarter 1997 versus 1996
Raytheon Company reported first quarter earnings of $183.4 million, or $.78 per
share, on record first quarter sales of $2.899 billion. For last year's first
quarter, earnings were $186.5 million, or $.78 per share, on sales of $2.788
billion. Operating income in this year's first quarter was $339.5 million, up
15.4 percent from $294.1 million for the first quarter of 1996, compared to a
4.0 percent increase in revenues over this same period.
The first quarter earnings of $183.4 million, or $.78 per share, were achieved
despite having higher interest expense of $15 million in the quarter and lower
non-operating income of $34 million due to first quarter 1996 nonrecurring
income adjustments related to a federal income tax refund claim and the release
of a contingency reserve associated with the sale of a business.
As announced in January 1997, Raytheon has entered into definitive agreements,
subject to approvals, to purchase the assets of Texas Instruments' (TI) defense
operations and to merge with Hughes Electronics' defense operations.
The Electronics segment led Raytheon's increase in first quarter sales and
operating income, as segment sales rose 12.8 percent and segment operating
income increased 22.5 percent, compared with the first quarter a year ago.
Raytheon Electronic Systems, based primarily in Massachusetts, was up in both
sales and operating profits for the first time in 15 quarters. Raytheon
E-Systems higher operating income reflects both margin improvement and the
acquisition of Chrysler Technologies' aircraft modification and defense
electronics businesses. In addition, sales and operating income were up in
continuing operations for the commercial electronics group.
The Engineering and Construction segment reported operating margins of 7.8
percent on revenues of $681 million. While sales remained constrained due to the
pace of international turnkey projects, the group made steady quarter
improvement over its third and fourth quarter operating margin comparisons.
The Aircraft segment reported a 20.7 percent increase in operating income over
the first quarter of 1996, resulting from a favorable sales mix within a
slightly lower sales base.
The Major Appliances segment reported first quarter sales of $341 million and
operating profits of $13 million. Sales were up for refrigerators and self-clean
cooking products. These sales increases were offset by lower shipments of home
appliance room air conditioners. Excluding "manual-clean" cooking ranges, for
which a charge was taken in the third quarter of 1996 to exit the business,
first quarter revenues were flat as compared with the first quarter 1996
results.
Raytheon announced in February, 1997 that it is evaluating strategic
alternatives for the Appliance Group, which may result in the sale or merger of
the group at some time in the future. The company has retained an advisor to
assist with this evaluation. The decision to undertake this strategic
reassessment was made in the context of Raytheon's financial priorities, and the
belief that the Appliance Group may have greater value to another company with
more focus on the markets served by the group.
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A leader in the field of wide-area environmental surveillance, Raytheon
won an international competition to develop and produce the System for the
Surveillance of the Amazon (SIVAM) -- an environmental monitoring system that
will help Brazil protect natural resources, sustain economic growth and support
proper land use, conservation and development in the Amazon region. On March 14,
1997, Raytheon announced that the SIVAM contract had been signed by the
government of Brazil and that all financing agreements for the program had been
finalized. The system is based on an integrated network of telecommunications,
remote satellite sensing and imagery and ground-based and airborne sensors
controlled by regional and national coordination centers.
Three lawsuits have been filed seeking to set aside the SIVAM contract
between the Government of Brazil and Raytheon on various grounds. The lower
court in one of these actions has issued a decision declaring the contract
invalid and issued an injunction enjoining contract performance. The President
of the Regional Court has suspended the lower court's decision and the
injunction. Raytheon is appealing the lower court's decision.
SEGMENT DATA
Three Months Ended
Sales March 30, 1997 March 31, 1996
----- -------------- --------------
Electronics $1,443 $1,280
Engineering and Construction 681 700
Aircraft 434 451
Major Appliances 341 357
--- ---
Total Sales $2,899 $2,788
Segment Income
Electronics $245 $200
Engineering and Construction 53 56
Aircraft 29 24
Major Appliances 13 14
---- ----
Total Segment Income $340 $294
Segment Income as a
Percent of Sales
Electronics 17.0% 15.6%
Engineering and Construction 7.8 8.0
Aircraft 6.7 5.3
Major Appliances 3.8 3.9
Total Segment Income as a
Percent of Sales 11.7% 10.5%
Certain reclassifications of prior period information were made to
conform to the current year presentation.
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Sales to the U. S. Government, including Foreign Military Sales, were $1.320
billion, an increase of $174 million or 15.2 percent from the comparable quarter
of 1996. U.S. Government sales were 45.5 percent of consolidated net sales in
1997 compared with 41.4 percent in 1996.
Administration and selling expenses decreased to $260.1 million in 1997 from
$264.7 million in 1996 due principally to the sale of Xyplex in April, 1996.
Research and development expenses decreased to $79.1 million in 1997 from $87.5
million in 1996. The decrease was due to lower spending at the Electronics
segment and the sale of Xyplex.
Operating income was $339.5 million or 11.7 percent of sales versus $294.1
million or 10.5 percent of sales in 1996. Operating income in 1997 was 15.4
percent above 1996.
Interest expense increased to $68.9 million in 1997 from $54.2 million in 1996.
The increase was due principally to the higher debt level from the acquisition
of Chrysler Technologies and Rust Engineering in the second quarter of 1996.
Interest and dividend income declined to $5.7 million in 1997 from $20.3 million
in 1996. The 1996 results included accrued interest before tax on a
retroactive federal income tax refund claim.
Other income, net for 1997 was $2.1 million versus $21.8 million in 1996. The
1996 results included $20 million before tax from the release of a contingency
reserve associated with the sale of a business.
The 1997 effective tax rate of 34.1 percent reflects the statutory rate of 35
percent reduced principally by Foreign Sales Corporation tax credits and
incremental research and development tax credits applicable to certain
government contracts, partially offset by non-deductible amortization of
goodwill.
For reasons discussed above, net income of $183.4 million was down $3.1 million
or 1.6 percent from 1996.
Earnings per common share for the first quarter of 1997 were $.78 which was
equal to the 1996 earnings per common share. The average number of shares
outstanding during the first quarter of 1997 was 236.3 million versus 240.1
million in 1996. During the quarter outstanding shares were increased by
approximately 186 thousand shares due to the exercise of stock options and the
conversion of the present value of directors pension benefit into shares of the
company's common stock. These were partially offset by the repurchase of 149
thousand shares in the open market at a cost of $6.8 million.
On February 22, 1995, the Board of Directors authorized the repurchase of up to
12 million shares of the company's common stock. There have been 9.5 million
shares purchased under this authorization through the first quarter of 1997.
The book value of common shares outstanding at the end of the period was $19.97
as compared with $19.46 at December 31, 1996, and $18.16 at March 31, 1996.
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Backlog consisted of the following at:
March 30, December 31, March 31,
1997 1996 1996
Electronics $ 7,626 $ 7,303 $ 6,983
Engineering and Construction 3,630 3,565 2,242
Aircraft 1,353 1,163 1,289
Major Appliances 39 35 39
------- -------- -------
Total Backlog $12,648 $12,066 $10,553
U.S. government backlog
included above $ 5,732 $ 5,637 $ 5,045
During the first quarter of 1997 there was a negative cash flow from operations
of $5.1 million. Net income plus depreciation and amortization provided a
positive cash flow of $277.6 million but this was more than offset by increases
in contracts in process and inventories. During the quarter the company sold
$327.1 million of receivables, including general and commuter aviation long-term
receivables and a fractional ownership in a defined pool of engineering and
construction and appliance receivables, to a bank syndicate and other financial
institutions. During the quarter funds were used for additions to property,
plant and equipment of $108.4 million and dividend payments of $47.2 million.
Principally as a result of the above, short-term debt increased by $176.5
million.
Debt, net of cash and marketable securities, was $3,768 million at March 30,
1997, as compared with $3,588 million at December 31, 1996, and $3,011 million
at March 31, 1996. Net debt as a percentage of total capitalization was 44.4
percent at March 30, 1997, as compared with 43.8 percent at December 31, 1996,
and 40.9 percent at March 31, 1996.
Capital expenditures were $108.4 million in the first quarter of 1997 versus
$104.0 million in the first quarter of 1996. Capital expenditures in 1997 are
expected to be moderately above the 1996 level, excluding the effect of
acquisitions.
Dividends declared to stockholders in the first quarter of 1997 were $47.2
million versus $47.9 million in 1996. The dividend rate was $.20 per quarter in
both quarters.
Total employment was 74,000 at March 30, 1997, as compared with 75,300 at
December 31, 1996, and 72,900 at March 31, 1996. The increase from March 31,
1996, is due principally to acquisitions of Chrysler Technologies and Rust
Engineering in the second quarter of 1996 partially offset by reductions in the
Electronics and Engineering and Construction segments and the sale of Xyplex in
April, 1997.
In January 1997, Raytheon entered into definitive agreements to purchase the
assets of Texas Instruments' (TI) defense operations for $2.95 billion in cash
and to merge with Hughes Electronics' defense operations, with the combined
company to be called Raytheon. The Hughes transaction is valued at $9.5 billion,
comprised of approximately $5.1 billion in common stock and $4.4 billion in debt
to be assumed by the merged company. The notes to the financial statements in
Raytheon's 1996 Annual Report, the Annual Report on Form 10-K for the year ended
December 31, 1996, and the Current Report on Form 8-K dated January 17, 1997,
provide a more complete description of the Hughes transaction.
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The two transactions are subject to regulatory approvals, including
Hart-Scott-Rodino antitrust review, with the Hughes transaction subject to a
favorable ruling by the Internal Revenue Service and approval by Raytheon,
General Motors (GM) and GM "H" stockholders.
Credit ratings for the company, based on the proposed acquisitions, have been
lowered by Moody's to P-2 for short-term borrowing and A-3 for senior debt as of
January 16, 1997 with negative implications, by Standard and Poor's to A-3 for
short-term borrowing and BBB for senior debt as of January 17, 1997 with
negative implications and by Duff & Phelps to D-2 for short-term borrowing and
BBB+ for senior debt as of February 26, 1997. Moody's and Standard and Poor's
have reviewed the detailed financials associated with these transactions and
will issue final ratings in the near term. The company expects that its cash
flow from operations and asset reductions will be sufficient to maintain
investment grade credit ratings and available debt financing will be sufficient
to meet any additional funding requirements in 1997.
The company announced in the third quarter of 1996 that it would exit the
manual-clean range market and dispose of the assets related to that operation,
including its facility located in Delaware, Ohio, and recorded a $34.0 million
pre-tax charge for this closing. The after-tax effect was $22.1 million or $.09
per share.
The company enters into interest rate swaps and locks and foreign currency
forward agreements with commercial and investment banks to reduce the impact of
changes in interest rates and foreign exchange rates on long-term debt and on
purchases, sales and financing arrangements with lenders, vendors, customers and
foreign subsidiaries. The company meets its working capital requirements mainly
with variable rate short-term financing. Interest rate swaps are primarily used
to provide purchasers of the company's products with fixed financing terms over
extended time periods. The company also enters into foreign exchange forward
contracts to minimize fluctuations in the value of payments due to international
vendors and the value of foreign currency denominated receipts. The hedges used
by the company are directly related to a particular asset, liability, or
transaction for which a firm commitment is in place. Swaps and foreign exchange
contracts are normally held to maturity and no exchange traded or
over-the-counter instruments have been purchased. The impact on the financial
position, liquidity, and results of operations from likely changes in foreign
exchange and interest rates is immaterial due to the minimizing of risk through
the hedging of transactions related to specific assets, liabilities, or
commitments.
Recurring costs associated with the company's environmental compliance program
are not material and are expensed as incurred. Capital expenditures in
connection with environmental compliance are immaterial. The company is involved
in various stages of investigation and cleanup relative to remediation of
various sites. All appropriate costs incurred in connection therewith have been
expensed. Due to the complexity of environmental laws and regulations, the
varying costs and effectiveness of alternative cleanup methods and technologies,
the uncertainty of insurance coverage, and the unresolved extent of the
company's responsibility, it is difficult to determine the ultimate outcome of
these matters. However, in the opinion of management, any additional liability
will not have a material effect on the company's financial position, liquidity,
or results of operations after giving effect to provisions already recorded.
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The company adopted Statement of Financial Accounting Standard No. 125,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities, in 1997. The adoption did not have a material effect on the
company's financial position or results of operations.
The company adopted the American Institute of Certified Public Accountants'
Statement of Position 96-1, Environmental Remediation Liabilities, in 1997. The
adoption of the standard did not have a material effect on the company's
financial position or results of operations.
The company will adopt Statement of Financial Accounting Standard No. 128,
Earnings per Share, in the fourth quarter of 1997. The adoption is not expected
to have a material effect on the company's financial position, results of
operations or earnings per share.
Forward Looking Statements
Statements which are not historical facts contained in this report are
forward-looking statements that involve risks and uncertainties. These risks
include, in addition to the specific uncertainties referenced in this report,
the ability to realize anticipated cost efficiencies from the acquisition of the
defense systems and electronics business of Texas Instruments and the merger of
the Company with the defense business of Hughes Electronics Corporation, the
effect of worldwide political and market conditions, the impact of competitive
products and pricing and the timing of awards and contracts. Further information
regarding the factors that could cause actual results to differ materially from
projected results can be found in Raytheon's reports filed with the SEC,
including our Current Reports Form 8-K filed on January 6, 1997 and January 17,
1997, respectively, and our Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
PART II. OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 10.1 $4 Billion Credit Agreement -- Five-Year Competitive Advance
and Revolving Credit Facility.
Exhibit 10.2 $3 Billion Credit Agreement -- 364-Day Competitive Advance
and Revolving Credit Facility.
Exhibit 27 Financial Data Schedule (filed only electronically with the
Securities and Exchange Commission).
(b) Reports on Form 8-K
(1)Raytheon Company Current Report on Form 8-K filed with
the Securities and Exchange Commission on January 6, 1997.
(2)Raytheon Company Current Report on Form 8-K filed with
the Securities and Exchange Commission on January 17, 1997.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RAYTHEON COMPANY (Registrant)
By: /s/ Peter R. D'Angelo
Peter R. D'Angelo
Executive Vice President and
Chief Financial Officer
May 14, 1997
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EXHIBIT LIST
Exhibit 10.1 $4 Billion Credit Agreement -- Five-Year Competitive
Advance and Revolving Credit Facility.
Exhibit 10.2 $3 Billion Credit Agreement -- 364-Day Competitive Advance
and Revolving Credit Facility.
Exhibit 27 Financial Data Schedule (filed only electronically with the
Securities and Exchange Commission).
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EXHIBIT 10.1
$4,000,000,000
CREDIT AGREEMENT
Dated as of May 2, 1997,
among
RAYTHEON COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN,
BANCAMERICA SECURITIES, INC.,
as Syndication Agent,
CANADIAN IMPERIAL BANK OF COMMERCE
and
CREDIT SUISSE FIRST BOSTON,
as Documentation Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
FIVE-YEAR COMPETITIVE ADVANCE
AND REVOLVING CREDIT FACILITY
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CREDIT AGREEMENT dated as of May 2, 1997 (this "Agreement"), among RAYTHEON
COMPANY, a Delaware corporation (the "Borrower"), the Lenders (as defined in
Article I), BANCAMERICA SECURITIES, INC., as Syndication Agent (in such
capacity, the "Syndication Agent"), CANADIAN IMPERIAL BANK OF COMMERCE and
CREDIT SUISSE FIRST BOSTON, as Documentation Agents (in such capacity, each a
"Documentation Agent" and, collectively, the "Documentation Agents"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders.
Pursuant to an asset purchase agreement dated as of January 4, 1997
(the "Asset Purchase Agreement"), between the Borrower and Texas Instruments
Incorporated, a Delaware corporation ("TI"), the Borrower intends, subject to
the conditions set forth in the Asset Purchase Agreement (such term and each
other capitalized term used but not defined herein having the meaning given to
it in Article I), to acquire all the assets and assume certain of the
liabilities (the "TI Acquisition") of the defense business of TI. The Borrower
also intends, subject to the conditions set forth in the Hughes Merger
Agreement, to combine its business with the defense business of HE Holdings,
Inc., a Delaware corporation ("Hughes"), by merging (the "Hughes Merger") with
and into Hughes pursuant to an Agreement and Plan of Merger dated as of January
16, 1997 (the "Hughes Merger Agreement"), between the Borrower and Hughes. The
Borrower has requested the Lenders to extend credit in the form of Revolving
Loans at any time and from time to time prior to the Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of
$4,000,000,000. The Borrower has requested the Lenders to provide a procedure
pursuant to which the Borrower may invite the Lenders to bid on an uncommitted
basis on short-term Borrowings by the Borrower. The proceeds of the Loans are to
be used (a) to finance the TI Acquisition, (b) to repay in full all outstanding
amounts under the Borrower's existing Credit Agreement dated as of April 28,
1995 (as amended, the "Existing Credit Agreement"), and (c) to pay related fees
and expenses. In addition, the proceeds of the Loans may be used to provide
working capital and for other general corporate purposes of the Borrower,
including commercial paper backup.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions set forth herein. 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 Loan bearing interest at the Alternate Base Rate
in accordance with the provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
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"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall mean the Administrative Agent, the Syndication Agent and the
Documentation Agents.
"Agents' Fees" shall have the meaning assigned to such term in Section
2.06(b).
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. 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 Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c), or
both, of the preceding sentence, as appropriate, 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, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan (other than any Eurodollar Competitive Loan), or with respect to
the Facility Fees, as the case may be, the applicable percentage set forth below
under the caption "Eurodollar Spread" or "Fee Percentage", as the case may be,
based upon the ratings by S&P and Moody's, respectively, applicable on such date
to the Index Debt:
Eurodollar Fee
Spread Percentage
Category 1
AA- or higher by S&P
Aa3 or higher by Moody's .120% .060%
Category 2
A+ or A by S&P
A1 or A2 by Moody's .155% .070%
<PAGE>
4
Category 3
A- by S&P
A3 by Moody's .170% .080%
Category 4
BBB+ by S&P
Baa1 by Moody's .200% .100%
Category 5
BBB by S&P
Baa2 by Moody's .225% .125%
Category 6
BBB- by S&P
Baa3 by Moody's .300% .150%
Category 7
Less than BBB- by S&P
Less than Baa3 by Moody's .375% .175%
For purposes of the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), then such
rating agency shall be deemed to have established a rating in Category 7; (ii)
if the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings unless the ratings
differ by more than one category, in which case the governing rating shall be
the rating next below the higher of the two; (iii) until the aggregate
commitments under this Agreement, the 364-day Agreement and the Hughes Credit
Agreements are reduced below $8,000,000,000, the Eurodollar Spread will be
increased by 0.05% at all times that the aggregate amounts outstanding hereunder
and under the 364-day Agreement exceed 66 2/3% of the aggregate commitments
(whether used or unused) hereunder and under the 364-day Agreement; and (iv) if
the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt 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 applicable rating agency. Each 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
<PAGE>
5
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 Borrower and the Lenders shall
negotiate in good faith to amend 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.
"Asset Sale" shall mean the sale, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries to any person other than
the Borrower or any of its wholly owned Subsidiaries of any capital stock or
assets owned by such person other than inventory, obsolete or worn out assets or
accounts receivable, in each case disposed of in the ordinary course of
business; provided, however, that any asset sale or series of related asset
sales described above having a value not in excess of $25,000,000 shall not be
deemed an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate. The
term "Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other domestic banking authority to which the
Administrative Agent or any Lender (including any branch, Affiliate, or other
fronting office making or holding a Loan) is subject with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in Dollars of over $100,000
with maturities approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage. The term "Assessment Rate" shall mean for any date the
annual rate (rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then current net annual
assessment rate that will be employed in determining amounts payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or such successor) of time
deposits made in Dollars at the Administrative Agent's domestic offices.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (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>
6
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.04 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
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 (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
"Closing Date" shall mean May 2, 1997.
"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 to make Revolving Loans hereunder as set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.10 or pursuant to Section 2.17, and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Borrower pursuant to Section 2.03(d) in the form of Exhibit D-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive
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 D-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 by the Borrower
under the bidding procedure described in Section 2.03.
<PAGE>
7
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan. "Confidential Information
Memorandum" shall mean the Confidential Information Memorandum of the Borrower
dated April 1997.
"Consolidated Net Tangible Assets" shall mean, as at any date of
determination, the total amount of assets of the Borrower and the Subsidiaries
(less applicable depreciation, amortization and other valuation reserves) at
such date, after deducting therefrom (a) all current liabilities of the Borrower
and the Subsidiaries at such date and (b) all goodwill, trade names, trademarks,
patents, unamortized debt issuance fees and expenses and other like intangibles
at such date.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Debt Issuance" shall mean the public or private issuance or series of
related issuances by the Borrower or any Subsidiary of Indebtedness for money
borrowed in an aggregate principal amount in excess of $50,000,000 with a
maturity greater than 270 days; provided, however, that none of the following
shall be considered a "Debt Issuance" for purposes of this Agreement: (a)
Indebtedness incurred under this Agreement, the 364-day Agreement or the Hughes
Credit Agreements, (b) Indebtedness incurred under Section 6.04 (other than
Section 6.04(h)) of each of this Agreement, the 364-day Agreement or the Hughes
Credit Agreements and (c) Indebtedness of the Borrower of the type described in
Section 6.04(c).
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of America.
"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 Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
<PAGE>
8
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice
that Withdrawal Liability is being imposed or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; and (h) the occurrence of a non-exempt
"prohibited transaction" with respect to which the Borrower or any of its
Subsidiaries is a "disqualified person" (within the meaning of Section 4975) of
the Code, or with respect to which the Borrower or any such Subsidiary could
otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"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 Revolving Loan or
Eurodollar Competitive Loan.
"Eurodollar Revolving Credit Borrowing" shall mean a Borrowing
comprised of Eurodollar Revolving Loans.
"Eurodollar Revolving Loan" shall mean any Revolving 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 VII.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the preamble.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"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 published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average 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.
"Fee Letter" shall mean the Fee Letter dated April 3, 1997, between the
Borrower and the Administrative Agent and the Syndication Agent (and/or an
Affiliate thereof).
<PAGE>
9
"Fees" shall mean the Facility Fees and the Agents' Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation and, with respect to the Borrower, shall also
mean the Vice President - Project and International Finance.
"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 in the
United States applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Hughes" shall have the meaning assigned to such term in the preamble.
"Hughes Credit Agreements" shall mean the 364-day and five-year credit
agreements to be entered into by, among others, Hughes, as borrower, Hughes
Aircraft Company, as guarantor, the lenders party thereto, BancAmerica
Securities, Inc., as syndication agent, and The Chase Manhattan Bank, as
administrative agent.
"Hughes Merger" shall have the meaning assigned to such term in the
preamble.
"Hughes Merger Agreement" shall have the meaning assigned to such term
in the preamble.
"Indebtedness" of any person shall mean, as at any date of
determination, all indebtedness (including capitalized lease obligations) of
such person and its consolidated subsidiaries at such date that would be
required to be included as a liability on a consolidated balance sheet
(excluding the footnotes thereto) of such person prepared in accordance with
GAAP applied on a basis consistent with the application used in the financial
statements referred to in Section 3.05(a).
"Index Debt" shall mean the senior, unsecured, non-credit enhanced,
long-term indebtedness for borrowed money of the Borrower.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, except with respect to any ABR Loan, the
date of any prepayment of such Loan or conversion of such Loan to a Loan of a
different Type.
<PAGE>
10
"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 earlier of (i) the next succeeding March
31, June 30, September 30 or December 31 and (ii) the Maturity Date 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 offer to
make the Fixed Rate Loans comprising such Borrowing was 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 a Eurodollar Borrowing 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.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing, the
rate (rounded upwards, if necessary, to the next 1/100 of 1%) at which Dollar
deposits approximately equal in principal amount to (i) in the case of a
Revolving Credit 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 Revolving Credit
Borrowing, and for a maturity comparable to such Interest Period are offered to
the principal London office 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, with respect to any asset of any person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities that
constitute assets of such person, any purchase option, call or similar right of
a third party with respect to such securities.
"Loans" shall mean the Revolving Loans and the Competitive Loans.
<PAGE>
11
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage 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 Stock" shall have the meaning assigned to such term in Regulation U.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole.
"Maturity Date" shall mean the fifth anniversary of the Closing Date.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
gross cash proceeds (including, without limitation, cash proceeds, whenever
received, of any non-cash consideration) of such Asset Sale less the sum of (i)
the reasonable costs associated therewith, including taxes (as estimated by the
Borrower or any of its Subsidiaries, as the case may be, in good faith),
brokers' and advisors' fees and commissions, (ii) payments of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness required to be, and which in fact is, paid or prepaid under the
terms thereof as a result of such Asset Sale and (iii) appropriate amounts as a
reserve, in accordance with GAAP, against any liabilities directly associated
with the capital stock or assets sold and which liabilities are retained by the
Borrower or any of its Subsidiaries after such Asset Sale (provided that such
amounts shall constitute Net Cash Proceeds as and when they are released from
such reserve) and (b) with respect to any Debt Issuance, cash proceeds net of
underwriting commissions or placement fees and expenses directly incurred in
connection therewith less the amount thereof used substantially concurrently
with the receipt thereof to repay or prepay short-term Indebtedness of the
Borrower or its Subsidiaries or the current maturities of long-term Indebtedness
of the Borrower or its Subsidiaries.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Permitted Receivables Program" shall mean any receivables
securitization program pursuant to which the Borrower or any of the Subsidiaries
sells accounts receivable to any non-Affiliate in a "true sale" transaction;
provided, however, that any related indebtedness incurred to finance the
purchase of such accounts receivable is not includible on the balance sheet of
the Borrower or any Subsidiary in accordance with GAAP and applicable
regulations of the Securities and Exchange Commission.
<PAGE>
12
"person" shall mean any natural person, corporation, limited liability
company, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"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 or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"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 being
effective.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least a majority of the sum of all Commitments at such time or,
for purposes of acceleration pursuant to clause (ii) of the last paragraph of
Article VII, Lenders having Loans and unused Commitments representing at least a
majority of the sum of all Loans outstanding and unused Commitments.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's Ratings Service.
<PAGE>
13
"Significant Subsidiary" shall mean, at any time, any Subsidiary that
would be a "Significant Subsidiary" at such time, as such term is defined in
Regulation S-X promulgated by the Securities and Exchange Commission as in
effect on the Closing Date.
"Stockholders' Equity" shall mean, as at any date of determination, the
stockholders' equity at such date (or as of the most recent practicable date
preceding such date (but in no event earlier than the last day of the fiscal
quarter preceding such date)) of the Borrower and its consolidated Subsidiaries,
as determined in accordance with GAAP.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held or (b) that is, at the time any
determination is made, otherwise 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 any subsidiary of the Borrower.
"364-day Agreement" shall mean the 364-day Credit Agreement dated as of
the date hereof among the Borrower, the lenders party thereto and the Agents.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"TI Acquisition" shall have the meaning assigned to such term in the
preamble.
"Total Capitalization" shall mean, as at any date of determination, the
sum of Total Debt at such date and Stockholders' Equity at such date.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Total Debt" shall mean, as at any date of determination, all
Indebtedness of the Borrower and its consolidated Subsidiaries at such date.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
<PAGE>
14
"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, the term "Rate" shall include
the LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"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 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, (a) any reference to this Agreement shall mean this
Agreement as amended, restated, supplemented or otherwise modified from time to
time and (b) 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 the covenants contained in Article
VI, all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05(a).
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 Revolving Loans to the Borrower, at
any time and from time to time on or after the Closing Date, and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (a)(i) such Lender's Revolving
Credit Exposure exceeding (ii) such Lender's Commitment or (b)(i) the aggregate
amount of outstanding Loans exceeding (ii) the Total Commitment. Within the
limits set forth in the preceding sentence, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans on or after the Closing Date and prior to
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
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15
SECTION 2.02. Loans. (a) Each Revolving 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 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 Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1,000,000 and not less than $10,000,000 or (ii) equal to the
remaining available balance of the Total Commitment.
(b) Subject to Sections 2.09 and 2.15, each Competitive Borrowing shall
be comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans, and
each Revolving Credit Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the 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 any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in more than 15 Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) 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 such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall by 12:00
(noon), New York City time, credit the amounts so received to an account with
the Administrative Agent designated by the Borrower in the applicable Borrowing
Request or Competitive Bid Request, which account must be in the name of the
Borrower 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.
(d) 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 paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent within one Business Day of demand
therefor such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Lender, a rate determined by the
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16
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). 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.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request (i) in the case of
a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before the proposed date of such 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 the proposed date of such Borrowing. A Competitive
Bid Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request. 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 D-1 may be rejected by the
Administrative Agent and the Administrative Agent shall notify the Borrower of
such rejection as promptly as practicable. Each Competitive Bid Request shall
refer to this Agreement and specify (i) whether the Borrowing being requested is
to be a Eurodollar Competitive Borrowing or a Fixed Rate Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number and the
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the
aggregate principal amount of such Borrowing, which shall be a minimum of
$10,000,000 and an integral multiple of $1,000,000 and not greater than the
Total Commitment then available; and (v) the Interest Period with respect
thereto (which may not end after the Maturity Date). Promptly after its receipt
of a Competitive Bid Request that is not rejected, the Administrative Agent
shall by telecopy in the form set forth in Exhibit D-2 invite the Lenders to bid
to make Competi tive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent by telecopy in the form of Exhibit D-3,
(i) in the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days before the proposed date of such
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 proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the format of
Exhibit D-3 may be rejected by the Administrative Agent, and the Administrative
Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) 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 such Loan or Loans and (z) the Interest Period
applicable to such Loan or Loans and the last day thereof.
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17
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been made and
the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph (d),
accept or reject any Competitive Bid. The 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 each Competitive Bid, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the 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 proposed date of the Competitive Borrowing; provided, however, that
(i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower Competitive BidRate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed (but may be less than) the principal amount specified in the Competitive
Bid Request, (iv) if the Borrower shall accept a Competitive Bid or Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid or Bids
would cause the total amount to be accepted by the Borrower to exceed the amount
specified in the Competitive Bid Request, then the Borrower shall accept a
portion of such Competitive Bid or Bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids so accepted, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Bid and (v) except pursuant to clause
(iv) above, no Competitive 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 Competitive 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 determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so, in
what amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, upon the terms and subject to the conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
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18
SECTION 2.04. Borrowing Procedure. In order to request a Borrowing
(other than a Competitive Borrowing, as to which this Section 2.04 shall not
apply), the Borrower shall hand deliver or telecopy to the Administrative Agent
a duly completed Borrowing Request (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before a
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 10:00
a.m., New York City time, on the day of a proposed Borrowing. Each Borrowing
Request shall be irrevocable, signed by or on behalf of the Borrower and shall
specify the following information: (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day); (iii) the number and location of
the account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)); (iv) the amount of such
Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar 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 the contents thereof), and of each Lender's
portion of the requested Borrowing.
SECTION 2.05. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby agrees that the outstanding principal balance of each Revolving Loan
shall be payable on the Maturity Date and the outstanding principal balance of
each Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest from and including the date of
such Loan on the outstanding principal balance thereof as set forth in Section
2.07.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid 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 thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) of this Section 2.05 shall 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 Borrower
to repay the Loans in accordance with their terms.
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(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year, and on the date on which the Commitment of such Lender
shall be terminated as provided herein, a facility fee (a "Facility Fee") equal
to the Applicable Percentage per annum in effect from time to time on the
average daily amount of the Commitment of such Lender (whether used or unused)
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which the Commitment of such
Lender shall expire or 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 be terminated as provided
herein.
(b) The Borrower agrees to pay to each of the Agents or their
Affiliates, for their own account, the fees set forth in the Fee Letter at the
times and in the amounts specified therein (the "Agents' Fees").
(c) All Fees shall be paid on the dates due, in immediately available
funds. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, 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, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate.
(b) Subject to the provisions of Section 2.08, 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 Revolving Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Percentage in effect from time
to time and (ii) in the case of each 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 Borrower pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.08, each Fixed Rate Loan
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 the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
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20
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or LIBO 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 2.08. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount to but excluding the date of actual payment (after as well as before
judgment) (a) in the case of overdue principal, at the rate otherwise applicable
to such Loan pursuant to Section 2.07 plus 2.00% per annum and (b) in all other
cases, at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when determined by
reference to the Prime Rate and over a year of 360 days at all other times)
equal to the sum of the Alternate Base Rate plus 2.00%.
SECTION 2.09. Alternate Rate of Interest. 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 that (a) Dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or (b) the rates at which such Dollar deposits are being offered will
not adequately and fairly reflect the cost to Lenders having Commitments
representing at least 20% of the Total Commitment of making or maintaining
Eurodollar Loans during such Interest Period, or (c) reasonable means do not
exist for ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination (other than
any such determination pursuant to clause (b) of the preceding sentence, to the
extent the circumstances giving rise to such determination would also give
Lenders the right to demand additional amounts pursuant to Section 2.14), until
the Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any request by
the Borrower for a Eurodollar Revolving Credit Borrowing pursuant to Section
2.04 shall be deemed to be a request for an ABR Borrowing and (ii) any request
by the 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.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments. (a) The
Commitments shall automatically terminate on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $10,000,000 and (ii) the Total Commitment shall not be reduced to an
amount that is less than the sum of the Aggregate Revolving Credit Exposure and
the aggregate outstanding principal amount of the Competitive Loans at the time.
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21
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the applicable Lenders,
on the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued to but excluding the date of
such termination or reduction.
SECTION 2.11. Conversion and Continuation of Revolving Credit
Borrowings. The Borrower shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (a) not later than 10:00 a.m., New York City
time, on the day of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar 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 Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by
recording for the account of such Lender the new Loan of such Lender
resulting from such conversion and reducing the Loan (or portion
thereof) of such Lender being converted by an equivalent principal
amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued
as a Eurodollar Borrowing; and
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or contin ued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing.
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22
Each notice pursuant to this Section 2.11 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted into or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted into or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto (which may not end after the Maturity Date). If no Interest
Period is specified in any such notice with respect to any conversion into or
continuation as a Eurodollar 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 2.11
and of each Lender's portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.11 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.11 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as an ABR Borrowing. The Borrower shall not have the
right to continue or convert the Interest Period with respect to any Competitive
Borrowing pursuant to this Section 2.11.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing (other than a
Competitive Borrowing), in whole or in part, upon at least three Business Days'
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent before 11:00 a.m., New
York City time; provided, however, that each partial prepayment shall be in an
amount that is an integral multiple of $1,000,000 and not less than $10,000,000.
The Borrower shall not have the right to prepay any Competitive Borrowing.
(b) In the event of any termination of the Commitments, the Borrower
shall repay or prepay all its outstanding Revolving Credit Borrowings on the
date of such termination. In the event of any partial reduction of the
Commitments, then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Lenders of the Aggregate
Revolving Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure
would exceed the available Total Commitment after giving effect to such
reduction, the Borrower shall, on the date of such reduction, repay or prepay
Revolving Credit Borrowings in an amount sufficient to eliminate such excess.
(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 Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments of Eurodollar Loans under this Section 2.12 shall be accompanied
by accrued interest on the principal amount being prepaid to the date of
payment.
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23
SECTION 2.13. Required Commitment Reductions and Prepayments. (a) If
prior to the second anniversary of the Closing Date the Borrower or any
Subsidiary shall complete any Asset Sale, then within three Business Days of the
receipt by the Borrower or any Subsidiary of any Net Cash Proceeds therefrom,
the Borrower shall on such date permanently reduce the Commitments and/or the
commitments under the 364-day Agreement and/or, after the consummation of the
Hughes Merger, the commitments under one or both of the Hughes Credit
Agreements, at the option of the Borrower, by an aggregate amount, which when
aggregated with all required commitment reductions made pursuant to Section
2.13(a) or (b) prior to such date, shall equal at least 75% of the aggregate Net
Cash Proceeds of such Asset Sale and all other Asset Sales and Debt Issuances
made prior to such date and, to the extent the outstanding Loans would exceed
the Total Commitment as so reduced, prepay any Revolving Loans then outstanding
on or prior to the effectiveness of such reduction by an amount sufficient to
eliminate such excess.
(b) If prior to the second anniversary of the Closing Date the Borrower
or any Subsidiary shall complete any Debt Issuance, then within three Business
Days of the receipt by the Borrower or any Subsidiary of any Net Cash Proceeds
therefrom, the Borrower shall on such date permanently reduce the Commitments
and/or the commitments under the 364-day Agreement and/or, after the
consummation of the Hughes Merger, the commitments under one or both of the
Hughes Credit Agreements, at the option of the Borrower, by an aggregate amount,
which when aggregated with all required commitment reductions made pursuant to
Section 2.13(a) or (b) prior to such date, shall equal at least 75% of the
aggregate Net Cash Proceeds of such Debt Issuance and all other Debt Issuances
and Asset Sales made prior to such date and, to the extent the outstanding Loans
would exceed the Total Commitment as so reduced, prepay any Revolving Loans then
outstanding on or prior to the effectiveness of such reduction by an amount
sufficient to eliminate such excess.
(c) In the event any prepayment required by Section 2.13(a) or (b) with
respect to any Revolving Loan would become due on a date that is not the last
day of the relevant Interest Period therefor and as a result thereof the
Borrower would incur liabilities under Section 2.16, then (i) if the last day of
the relevant Interest Period for such Loan would occur within 180 days of the
date on which such prepayment is otherwise due, and (ii) no Default or Event of
Default shall have occurred and be continuing, such prepayment may be made at
the Borrower's election on the last day of the relevant Interest Period for such
Loan and, pending such prepayment, the Borrower shall deposit such Net Cash
Proceeds with the Administrative Agent which shall hold such Net Cash Proceeds
for the benefit of the Lenders, in an interest bearing account, until such time
as such proceeds can be applied towards payment of the Loans in accordance with
the provisions of this Agreement without resulting in any liability to the
Borrower under Section 2.16. Until such Loans are so prepaid they shall
continue to accrue interest as provided hereunder, provided that all interest
which may accrue on any amounts so held in escrow shall be delivered by the
Administrative Agent to the Borrower following prepayment of the principal of
and accrued interest on such Loans.
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SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, 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 impose, modify or deem applicable 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 impose on such Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made 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 hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that the adoption after the
date hereof of any law, rule, regulation, agreement or guideline regarding
capital adequacy, or any change after the date hereof in any such law, rule,
regulation, agreement or guideline (whether such law, rule, regulation,
agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company with any request
or directive regarding capital adequacy (whether or not having the force of law)
of any Governmental Authority has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company (including the
calculation thereof) as specified in paragraph (a) or (b) above shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay 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 shall not constitute a waiver of such Lender's
right to demand such compensation. 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, agreement, guideline or other
change or condition that shall have occurred or been imposed. Notwithstanding
any other provision of this Section, no Lender shall be entitled to demand
compensation hereunder in respect of any Competitive Loan if it shall have been
aware of the event or circumstance giving rise to such demand at the time it
submitted the Competitive Bid pursuant to which such Loan was made.
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25
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, 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 Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon such Lender shall not submit a Competitive
Bid in response to a request for a Eurodollar Competitive Loan and any
request for a Eurodollar Borrowing (or to convert an ABR Borrowing to a
Eurodollar Borrowing or to continue a Eurodollar Borrowing for an
additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan unless such declaration shall be subsequently
withdrawn (or a request to continue an ABR Loan as such for an
additional Interest Period or to convert a Eurodollar Loan into an ABR
Loan, as the case may be); and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which 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 that 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 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, 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 by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of any event, other than a default by such Lender in the performance
of its obligations hereunder, that results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Fixed Rate Loan
or Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case prior to
the end of the Interest Period in effect therefor or (iii) any Fixed Rate Loan
or Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to
be made pursuant to a conversion or continuation under Section 2.11) not being
made after notice of such Loan shall have been given by the Borrower hereunder
(any of the events referred to in this sentence being called a "Breakage
Event"). In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan or Fixed Rate Loan that is the subject
of such Breakage Event for the period from the date of such Breakage Event to
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26
the last day of the Interest Period in effect (or that would have been in
effect) for such Loan over (ii) the amount of interest likely to be realized by
such Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in the two
succeeding sentences with respect to Competitive Borrowings and as required
under Section 2.15, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Facility Fees, each reduction of the Commitments and each continuation or
conversion of any Borrowing to a 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 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 that 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 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Loans as
a result of which the unpaid principal portion of its Revolving Loans shall be
proportionately less than the unpaid principal portion of the Revolving 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 Revolving Loans of such other Lender,
so that the aggregate unpaid principal amount of the Revolving Loans and
participations in Revolving Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Revolving Loans then
outstanding as the principal amount of its Revolving Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Revolving 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 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
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27
recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Revolving Loan deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Revolving Loan
directly to the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder not later than 12:00 (noon), New York City time, on the date
when due in immediately available Dollars, without defense, setoff or
counterclaim. Each such payment shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any 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 Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.19, 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 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, being called "Taxes"). If the
Borrower shall be required to deduct any Taxes from or in respect of any sum
payable hereunder to the Administrative Agent or any Lender (or any Transferee),
(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) the
Administrative Agent or such Lender (or Transferee), as the case may be, shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to 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").
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28
(c) The Borrower will indemnify the Administrative Agent and each
Lender (or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (or Transferee), 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,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by the Administrative Agent or a Lender (or
Transferee), 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 Administrative Agent or any
Lender (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent or a Lender (or Transferee) receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has 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 Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.20 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
Lender (or Transferee), shall repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent or such Lender
(or Transferee) in the event the Administrative Agent or such Lender (or
Transferee) 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 Borrower to the relevant Governmental Authority, the Borrower
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.
(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 each of the Borrower 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 Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
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29
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower 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 Borrower 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 paragraph (h) shall not apply (x) 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
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (h)) 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 not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.20 shall require any Lender (or
any 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).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender delivers a certificate
requesting compensation pursuant to Section 2.14, (ii) any Lender delivers a
notice described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20, the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee which shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
<PAGE>
30
assignment); provided that (x) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (y) the Borrower shall have received the prior written consent of
the Administrative Agent, which consent shall not unreasonably be withheld, and
(z) the Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans of such
Lender plus all Fees and other amounts accrued for the account of such Lender
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's claim for compensation under Section 2.14
or notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as
the case may be, cease to cause such Lender to suffer increased costs or
reductions in amounts received or receivable or reduction in return on capital,
or cease to have the consequences specified in Section 2.15, or cease to result
in amounts being payable under Section 2.20, as the case may be (including as a
result of any action taken by such Lender pursuant to paragraph (b) below), or
if such Lender shall waive its right to claim further compensation under Section
2.14 in respect of such circumstances or event or shall withdraw its notice
under Section 2.15 or shall waive its right to further payments under Section
2.20 in respect of such circumstances or event, as the case may be, then such
Lender shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender shall request compensation under Section 2.14,
(ii) any Lender delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority on account of any Lender, pursuant to Section 2.20, then,
such Lender shall use reasonable efforts (which shall not require such Lender to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any
action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such filing, assignment,
delegation and transfer.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and
each of the Lenders that:
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SECTION 3.01. Organization; Powers. The Borrower and each of the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect. The
Borrower has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to borrow hereunder. Schedule 3.01 sets
forth each Significant Subsidiary of the Borrower in existence on the Closing
Date.
SECTION 3.02. Authorization. The execution, delivery and performance by
the Borrower of this Agreement and the borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
Significant Subsidiary, (B) any order of any Governmental Authority or (C) any
material provision of any material indenture, agreement or other instrument to
which the Borrower or any Significant Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in material conflict
with, result in a material breach of or constitute (alone or with notice or
lapse of time or both) a material default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such material indenture, agreement or other instrument or
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by the Borrower or any
Significant Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
those which have been made or obtained.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its consolidated balance sheet, statement of income and
statement of cash flows as of and for the fiscal year ended December 31, 1996,
audited by and accompanied by the opinion of Coopers & Lybrand, independent
public accountants. Such financial statements present fairly the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries as of such date and for such period. Such balance sheet and the
notes thereto disclose all material liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
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(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated financial statements as of December 31, 1996, prepared
giving effect to the TI Acquisition as if it had occurred on such date. Such pro
forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum (which assumptions are
believed by the Borrower on the date hereof to be reasonable), are based on the
best information available to the Borrower as of the date of delivery thereof,
accurately reflect all adjustments required to be made to give effect to the TI
Acquisition and present fairly on a pro forma basis the estimated consolidated
financial position of the Borrower and its consolidated Subsidiaries as of
December 31, 1996, assuming that the TI Acquisition had actually occurred at
January 1, 1996.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, since
December 31, 1996.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.07, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect. Except as set forth on Schedule 3.07, to
the knowledge of the Borrower, on the Closing Date there are not any actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or threatened against or affecting the defense business of
TI or any business, property or rights relating thereto (i) that involve this
Agreement or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority
(including any of the foregoing relating to the environment), where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the Borrower nor any
of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
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33
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U or X.
Margin Stocks do not constitute 25% or more of the fair market value of the
assets of the Borrower and the Subsidiaries subject to the restrictions of
Section 6.01.
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act.
Neither the 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 3.10. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal and all material state, local and
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes shown to be due and payable by it on such returns
and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiaries, as applicable, shall have set aside on its books adequate reserves
in accordance with GAAP.
SECTION 3.11. No Material Misstatements. None of (a) the information
contained in the Confidential Information Memorandum and relating to the
Borrower and its Subsidiaries, (b) to the best knowledge of the Borrower, the
information contained in the Confidential Memorandum and relating to TI or the
assets and businesses to be acquired in the TI Acquisition or (c) any other
information, report, financial statement, exhibit or schedule furnished in
writing by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or included herein
or delivered pursuant hereto contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast or projection, the Borrower represents
only that it acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto before the Closing Date, exceed the fair market value of the assets of
such Plan, and the present value of all benefit liabilities of all underfunded
Plans (based on those assumptions used to fund each such Plan) did not, as of
the last annual valuation dates applicable thereto before the Closing Date,
exceed the fair market value of the assets of all such underfunded Plans.
<PAGE>
34
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 (other
than, in the case of paragraph (b) below, a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 or 2.04, as applicable.
(b) The representations and warranties set forth in Article III 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 (i)
to the extent such representations and warranties expressly relate to an earlier
date and (ii) with respect to any borrowing the proceeds of which are used to
finance the TI Acquisition and at all times following the consummation of the TI
Acquisition, without giving effect to the knowledge qualification contained in
clause (b) of Section 3.11.
(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 Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b)(except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Borrowing. On the date of the initial Borrowing:
(a) The Administrative Agent shall have received, on behalf of itself and
the Lenders, the favorable written opinions of Thomas D. Hyde, Esq., Vice
President and General Counsel of the Borrower, and (ii) Wachtell, Lipton, Rosen
& Katz, special counsel for the Borrower, substantially to the effect set forth
in Exhibits E and F, respectively, each (A) dated the Closing Date, (B)
addressed to the Agents and the Lenders, and (C) covering such other matters
relating to this Agreement and the transactions contemplated hereby as the
Administrative Agent shall reasonably request, and the Borrower hereby requests
such counsel deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate of incorporation, including all amendments thereto, of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware, and a certificate as to the good standing of the Borrower as of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of the Borrower dated the Closing Date and certifying (A)
that attached thereto is a true and complete copy of the by-laws of the Borrower
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 resolu tions duly adopted by the Board of Directors of
the Borrower authorizing the execution, delivery and performance of this
<PAGE>
35
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 of the Borrower has not been amended since the date
of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, 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 Borrower; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Lenders or Cravath, Swaine & Moore,
counsel for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(e) The Administrative Agent and the other Agents and their Affiliates
shall have received all Fees and other amounts due and payable on or prior to
the Closing Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(f) The commitments under the Existing Credit Agreement shall have been
terminated and all principal, interest and other amounts outstanding thereunder
shall have been paid in full.
(g) The 364-day Agreement shall have been, or shall simultaneously be,
executed and delivered by the parties thereto and shall be in full force and
effect.
SECTION 4.03. TI Acquisition Borrowings. On the date of each Borrowing
the proceeds of which are used to finance the TI Acquisition:
(a) The Lenders shall be reasonably satisfied with any change occurring
after April 3, 1997, in the structure or terms of the TI Acquisition (including
with respect to the aggregate consideration and other amounts to be paid by the
Borrower).
(b) All consents required to be obtained under the Asset Purchase Agreement
prior to the closing of the TI Acquisition shall have been obtained, except
where the failure to obtain the same would not, individually or in the
aggregate, (i) have a material adverse effect on the TI defense business or (ii)
prohibit the Borrower from operating the TI defense business following the
closing of the TI Acquisition in substantially the same manner as the defense
business was operated by TI prior to such closing, all applicable waiting
periods shall have expired and there shall be no governmental or judicial
action, actual or threatened, restraining, preventing or imposing burdensome
conditions on the TI Acquisition or the transactions contemplated hereby.
<PAGE>
36
(c) There shall be no litigation or administrative proceedings or other
legal or regulatory developments, actual or threatened, that, in the judgment of
the Lenders, involve a reasonable possibility of prohibiting or imposing
burdensome conditions on the TI Acquisition or the transactions contemplated
hereby.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under this Agreement shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and will
cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. In the case of
the Borrower and the Significant Subsidiaries:
(a) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, except as
otherwise expressly permitted under Section 6.03 and
(b) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted; and at all times maintain, preserve and protect all
property material to the conduct of its business.
SECTION 5.02. Insurance. 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 in the same or similar businesses, provided that nothing in this
Section 5.02 shall preclude the Borrower or any Subsidiary from being
self-insured (to the extent deemed prudent by the Borrower or such Subsidiary
and customary with companies in the same or similar business).
SECTION 5.03. Taxes. Pay and discharge promptly when due all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in
respect of its property, before the same shall become delinquent or in default,
as well as all lawful claims for labor, materials and supplies or otherwise
that, if unpaid, might give rise to a Lien upon such properties or any part
thereof unless and to the extent the same are being contested in good faith by
appropriate proceedings and adequate reserves with respect thereto shall, to the
extent required by GAAP, have been set aside.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
<PAGE>
37
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet, statement of income and statement of cash flows showing the
financial condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the operations
of such Subsidiaries during such year, all audited by Coopers & Lybrand or other
independent public accountants of recognized national standing 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 Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal quarters
of each fiscal year, its consolidated balance sheet, statement of income and
statement of cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and the results
of its operations and the operations of such subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial condition and results
of operations of the Borrower on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph
(a) or (b) above, a certificate of a Financial Officer certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto;
(d) promptly after their becoming available, copies of all financial
statements, stockholders reports and proxy statements that the Borrower shall
have sent to its stockholders generally, and copies of all registration
statements filed by the Borrower under the Securities Act of 1933, as amended
(other than registration statements on Form S-8 or any registration statement
filed in connection with a dividend reinvestment plan), and regular and periodic
reports, if any, which the Borrower shall have filed with the Securities and
Exchange Commission (or any governmental agency or agencies substituted
therefor) under Section 13 or Section 15(d) of the Securities and Exchange Act
of 1934, as amended, or with any national securities exchange (other than those
on Form 11-K or any successor form); and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Significant Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Promptly upon any
Responsible Officer of the Borrower obtaining knowledge of any of the following,
furnish to the Administrative Agent and each Lender written notice of the
following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
<PAGE>
38
(b) the filing or commencement of, or any notice of intention of any person
to file or commence, any action, suit or proceeding, whether at law or in equity
or by or before any Governmental Authority, against the Borrower or any
Affiliate thereof that could reasonably be expected to result in a Material
Adverse Effect or materially impair the Borrower's ability to perform its
obligations under this Agreement;
(c) any change in the ratings by S&P or Moody's of the Index Debt; and
(d) any development that has resulted in, or could reasonably be expected
to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender as soon as possible after, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows that, any ERISA Event has occurred that, alone or together with
any other ERISA Event known to have occurred, could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $75,000,000
in any year, a statement of a Financial Officer of the Borrower setting forth
details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain financial records in accordance with GAAP and, upon
reasonable notice, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any Significant Subsidiary during normal business
hours and to discuss the affairs, finances and condition of the Borrower or any
Significant Subsidiary with the officers thereof and independent accountants
therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under this Agreement have been paid in full,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will not, and will not cause or permit any of the Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
<PAGE>
39
(a) Liens on property or assets of the Borrower or any of its Subsidiaries
existing on the date hereof except, in the case of the Borrower, any such Lien
securing Indebtedness for borrowed money in excess of $5,000,000 that is not set
forth in Schedule 6.01, provided that all Liens permitted by this paragraph (a)
shall secure only those obligations which they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary (or, in the case of any property or
asset of Hughes or any of its subsidiaries, prior to the consummation of the
Hughes Merger), provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition (or the Hughes Merger) and (ii) such Lien
does not apply to any other property or assets of the Borrower or any
Subsidiary;
(c) Liens for taxes not yet past due or which are being contested in
compliance with Section 5.03;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases (other than capital leases), statutory obligations,
surety and appeal bonds, advance payment bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Borrower or any Subsidiary which are created or incurred within 360 days of such
acquisition, construction or improvement to secure or provide for the payment of
any part of the purchase price of such property or the cost of such construction
or improvement, including carrying costs (but no other amounts), provided that
any such Lien shall not apply to any other property of the Borrower or any
Subsidiary;
(i) Liens on the property or assets of any Subsidiary in favor of the
Borrower;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this Section 6.01, provided that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or replacement Lien shall be
in an amount not greater than the amount of the obligations secured by the Lien
extended, renewed or replaced;
<PAGE>
40
(k) any Lien of the type described in clause (c) of the definition of the
term "Lien" on securities imposed pursuant to an agreement entered into for the
sale or disposition of such securities pending the closing of such sale or
disposition; provided such sale or disposition is otherwise permitted hereunder;
(l) Liens arising in connection with any Permitted Receivables Program (to
the extent the sale by the Borrower or the applicable Subsidiary of its accounts
receivable is deemed to give rise to a Lien in favor of the purchaser thereof in
such accounts receivable or the proceeds thereof); and
(m) Liens to secure Indebtedness if, immediately after the grant thereof,
the aggregate amount of all Indebtedness secured by Liens that would not be
permitted but for this clause (m), when aggregated with the amount of
Indebtedness permitted by Section 6.04(h), does not exceed the greater of (i)
$100,000,000 or (ii) 15% of Consolidated Net Tangible Assets as shown on the
most recent consolidated balance sheet delivered pursuant to Section 3.05(a) or
5.04(a) or (b), as the case may be.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease back such property; provided,
however, that the Borrower and the Subsidiaries may enter into any such
transaction to the extent the Lien on any such property would be permitted by
Section 6.01(m).
SECTION 6.03. Mergers, Consolidations and Sales of Assets. In the case
of the Borrower, merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of, or permit the sale, transfer, lease or other disposition
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or agree to do any of the foregoing; provided, however, that, if
no Event of Default or Default shall have occurred and be continuing or would
occur immediately after giving effect thereto, (i) any person may merge into or
consolidate with the Borrower in a transaction in which the Borrower is the
surviving corporation, and (ii) the Borrower may consummate the Hughes Merger
substantially on the terms set forth in the Hughes Merger Agreement, without
giving effect to any material waiver or modification thereof not consented to by
the Required Lenders, and immediately upon consummation of the Hughes Merger,
Hughes shall assume all the obligations and be entitled to all the benefits of
the Borrower hereunder.
SECTION 6.04. Subsidiary Indebtedness. Permit any Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.04
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof;
(b) Indebtedness issued to the Borrower or any other Subsidiary;
<PAGE>
41
(c) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that such Indebtedness is incurred prior to
or within 90 days after such acquisition or the completion of such construction
or improvement;
(d) Indebtedness of any person that becomes a Subsidiary after the date
hereof; provided that such Indebtedness exists at the time such person becomes a
Subsidiary and is not created in contemplation of or in connection with such
person becoming a Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of credit;
(f) Indebtedness arising in connection with any Permitted Receivables
Program (to the extent the sale by the applicable Subsidiary of its accounts
receivable is deemed to be Indebtedness of such Subsidiary);
(g) performance, advance payment, warranty and bid guarantees and other
similar guarantees of payment (other than in respect of Indebtedness for
borrowed money) made by a Subsidiary in the ordinary course of business; and
(h) other Indebtedness in an aggregate principal amount, when aggregated
with the amount of all Indebtedness secured by Liens permitted by Section
6.01(m), not exceeding the greater of (i) $100,000,000 outstanding or (ii) 15%
of Consolidated Net Tangible Assets as shown on the most recent consolidated
balance sheet delivered pursuant to Section 3.05(a) or 5.04(a) or (b), as the
case may be.
SECTION 6.05. Debt to Capitalization. Permit Total Debt to exceed (i)
65% of Total Capitalization at any time from the Closing Date to but excluding
July 2, 1999, (ii) 60% of Total Capitalization from and including July 2, 1999
to but excluding January 1, 2002 and (iii) 55% of Total Capitalization from and
after January 1, 2002.
SECTION 6.06. Amendments to Agreements. Amend the Asset Purchase
Agreement or the Hughes Merger Agreement in any manner materially adverse to the
interests of the Lenders.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with 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 or pursuant
to this Agreement, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
<PAGE>
42
(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
Fee or any other amount (other than an amount referred to in (b) above) due
under this Agreement, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of three Business Days
following notice thereof;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
this Agreement (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent or any Lender to the Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $50,000,000, when and as the same shall become due
and payable, or (ii) fail to make any payment under any guarantee, if the
aggregate amount of the guaranteed obligations is in excess of $50,000,000,
except to the extent the Borrower or such Subsidiary is contesting in good faith
the requirement to make such payment, or (iii) 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 (iii) is 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 Borrower or any Significant Subsidiary, or of a substantial part
of the property or assets of the Borrower or a Significant Subsidiary, under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, seques
trator, conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of the property or assets of the Borrower
or a Significant Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any Significant 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;
<PAGE>
43
(h) the Borrower or any Significant 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, or any other
Federal, state or foreign 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
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary or for a substantial part of the property or assets of
the Borrower or any Significant 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 judgments for the payment of money in an aggregate amount
in excess of $50,000,000 (to the extent not adequately covered by insurance as
to which the insurance company has acknowledged coverage in writing) shall be
rendered against the Borrower, 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 Borrower or any
Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the reasonable opinion of
the Required Lenders, when taken together with all other such ERISA Events that
have occurred could reasonably be expected to result in a Material Adverse
Effect; or
(k) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower 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 by the
Borrower, anything contained herein to the contrary notwithstanding; and in any
event with respect to the Borrower 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 Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
<PAGE>
44
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 and each assignee of any such Lender
hereby irrevocably authorizes the Administrative Agent to take such actions on
behalf of such Lender or assignee 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 Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by
the Borrower 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 own gross negligence or wilful 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
Borrower 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 any other instruments or agreements. 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 (or, when
expressly required hereunder, all the 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 Borrower on account of the failure of or
delay in performance or breach by any 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 Borrower of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties here under 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 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.
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45
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 Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower (which consent
shall not be unreasonably withheld), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, 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 Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder)
of any expenses incurred for the benefit of the Lenders by the Administrative
Agent, including counsel fees, that shall not have been reimbursed by the
Borrower and (b) to indemnify and hold 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 that may be imposed
on, incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this Agreement, to the
extent the same shall not have been reimbursed by the Borrower, provided that no
Lender shall be liable to the Administrative Agent or any such other indemnified
person for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
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,
any related agreement or any document furnished hereunder. Each Lender further
acknowledges that the Syndication Agent and the Documentation Agents have no
duties or obligations as such under this Agreement.
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46
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Unless otherwise specified herein, notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 141 Spring Street, Lexington, MA 02173,
Attention of Mr. Herbert Deitcher (Telecopy No. 617-860-2505), with a copy to it
at 141 Spring Street, Lexington, MA 02173, Attention of General Counsel
(Telecopy No. 617-860-2626);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, One Chase
Manhattan Plaza, 8th Floor, New York, New York 10017, Attention of [ ] (Telecopy
No. (212) 552-5658), with a copy to The Chase Manhattan Bank, at 270 Park
Avenue, New York, New York 10017, Attention of [ ] (Telecopy No. 212-[ ]); 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
shall have become 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 or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) 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 Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any 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 Fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitments have not been terminated. The
provisions of Sections 2.14, 2.16, 2.20 and 9.05 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 expiration of the Commitments, 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.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
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47
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 permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(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 an
Affiliate of such Lender, (x) the Borrower and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld) and (y) the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $25,000,000 (or the entire
remaining amount of the assigning Lender's Commitment), unless such Lender is
making a substantially simultaneous assignment to the same assignee pursuant to
Section 9.04(b) of the 364-day Agreement, in which case the aggregate of the
amount of the Commitment of the assigning Lender subject to the assignment under
this Agreement and the amount of the commitment of the assigning Lender subject
to the assignment under the 364-day Agreement shall not be less than
$25,000,000, (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iii) 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 speci fied 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 2.14, 2.16, 2.20 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
(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 and that
its Commitment, and the outstanding balances of its Revolving Loans and
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48
Competitive Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any
Subsidiary or the performance or observance by the Borrower or any Subsidiary of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in Section 3.05 or
delivered pursuant to Section 5.04 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, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The Borrower, the Administrative
Agent and the Lenders may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary, and such entries in the
Register shall be conclusive absent manifest error. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, 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 Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and
the Borrower. No assignment shall be effective unless it has been recorded in
the Register as provided in this paragraph (e).
<PAGE>
49
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent 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) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20 (and shall have the duty to
mitigate under Section 2.21) to the same extent as if they were Lenders and (iv)
the Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower 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 increasing 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
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, "Company Private" or
"Proprietary", each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of 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, the 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 the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
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50
(j) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01 or
2.03(e), provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
(and, if such Loan is a Competitive Loan, shall be deemed to utilize the
Commitments of all the Lenders) to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the related Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 9.04 or in Section 9.16, any SPC may (i)
with notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Lender or to any
financial institutions providing liquidity and/or credit facilities to or for
the account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agents in connection with the syndication
of the credit facilities provided for herein and the preparation and
administration of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by
the Administrative Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement or in connection with
the Loans made hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent,
and, in connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel (including the allocated charges
of in-house counsel) for the Administrative Agent or any Lender. The Borrower
shall not be obligated to reimburse out-of-pocket legal expenses pursuant to the
preceding sentence for more than one law firm for the Agents incurred in
connection with the preparation of this Agreement or in connection with any
particular amendment, modification or waiver of the provisions hereof.
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51
(b) The Borrower agrees to indemnify the Administrative Agent and each
Lender, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
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 and
the other transactions contemplated hereby, (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 result from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 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 expiration of the Commitments, 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 9.05 shall be payable on written demand
therefor.
SECTION 9.06. 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
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 the account of the Borrower against any of and all the
obligations of the Borrower 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. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9.08. 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 that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
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52
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount
of, or extend the maturity of or any scheduled principal payment date or date
for the payment of any interest on any Loan or the payment of any Facility Fee,
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) change or extend the Commitment or decrease the Facility Fees of
any Lender without the prior written consent of such Lender, or (iii) amend or
modify the provisions of Section 2.17, the provisions of Section 9.04(i), the
provisions of this Section or the definition of the term "Required Lenders",
without the prior written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any other 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 and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY 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 THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
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53
SECTION 9.12. 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 and therein 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 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Agreement.
SECTION 9.14. 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 9.15. Jurisdiction; Consent to Service of Process. (a) The
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.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(b) The 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 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.
<PAGE>
54
SECTION 9.16. Confidentiality. The Administrative Agent and each of the
Lenders agrees to keep confidential (and to use its best efforts to cause its
respective agents and representatives to keep confidential) the Information (as
defined below) and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that the Administrative Agent or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority or examining authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process, (d)
in connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder, (e) to the extent permitted by Section 9.04(g), or (f) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Agreement or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" shall
mean all financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent or any Lender based on any of the foregoing) that are received from the
Borrower or any Subsidiary and related to the Borrower, any Subsidiary or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential, "Company Private" or
"Proprietary". The provisions of this Section 9.16 shall remain operative and in
full force and effect regardless of the expiration and term of this Agreement.
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.
RAYTHEON COMPANY,
By: /s/ Herbert Deitcher
Name: Herbert Deitcher
Title: Senior Vice President-Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ B. Joseph Lillis
Name: B. Joseph Lillis
Title: Managing Director
BANCAMERICA SECURITIES, INC., as
Syndication Agent,
By: /s/ John A. Finan
Name: John A. Finan
Title: Managing Director
<PAGE>
55
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
By: /s/Deborah J. Graziano
Name: Deborah J. Graziano
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Documentation Agent,
By: /s/Timothy E. Doyle
Name: Timothy E. Doyle
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON, individually
and as Documentation Agent,
By: /s/Lynn Allegaert
Name: Lynn Allegaert
Title: Vice President
By: /s/David W. Kratovil
Name: David W. Kratovil
Title: Director
ABN AMRO BANK N.V.,
By: /s/Carol A. Levine
Name: Carol A. Levine
Title: Senior Vice President and Managing Director
By: /s/ James E. Davis
Name: James E. Davis
Title: Group Vice President and Director
ARAB BANK PLC, GRAND CAYMAN BRANCH,
By: /s/Nofal S. Barbar
Name: Nofal S. Barbar
Title: EVP & Regional Manager
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
By: /s/Christine S. Pomeranz
Name: Christine S. Pomeranz
Title: Vice President
<PAGE>
56
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
By: /s/ Karen Purelis
Name: Karen Purelis
Title: Vice President
By: /s/ Charles Dougherty
Name: Charles Dougherty
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.P.A
NEW YORK BRANCH,
By: /s/ Giuliano Violetta
Name: Giuliano Violetta
Title First Vice President
By: /s/ Miguel J. Medida
Name: Miguel J. Medida
Title: Vice President
BANCA POPOLARE DI MILANO,
By: /s/ Anthony Franco
Name: Anthony Franco
Title: Executive Vice President & General Manager
By: /s/ Fulvio Montanari
Name: Fulvio Montanari
Title: First Vice President
BANKBOSTON N.A.,
By: /s/ Roberta F. Keeler
Name: Roberta F. Keeler
Title: Vice President
BANK BRUSSEL LAMBERT, NEW YORK
BRANCH,
By: /s/ John Kippax
Name: John Kippax
Title: Vice President & Manager
By: /s/ Dominick H. J. Vangaever
Name: Dominick H. J. Vangaever
Title: Senior Vice President-Credit
<PAGE>
57
BANK OF MONTREAL,
By: /s/ W. T. Calder
Name: W. T. Calder
Title: Director
THE BANK OF NEW YORK,
By: /s/ Peter H. Abdill
Name: Peter H. Abdill
Title: Vice President
THE BANK OF NOVA SCOTIA,
By: /s/ Tim Pitcher
Name: Tim Pitcher
Title: Authorized Signatory
BANKERS TRUST COMPANY,
By: /s/ Gina S. Thompson
Name: Gina S. Thompson
Title: Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR,
By: /s/ Pieter J. van Tulder
Name: Pieter J. van Tulder
Title: Vice President and Manager
Multinational Group
BANQUE NATIONALE DE PARIS,
By: /s/ Richard L. Sted
Name: Richard L. Sted
Title: Senior Vice President
By: /s/ Thomas George
Name: Thomas George
Title: Vice President
Corporate Banking Division
BANQUE PARIBAS,
By: /s/ John J. McCormick, III
Name: John J. McCormick, III
Title: Vice President
By: /s/ Mary T. Finnegan
Name: Mary T. Finnegan
Title: Group Vice President
<PAGE>
58
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS BRANCH,
By: /s/ Peter Obermann
Name: Peter Obermann
Title: Senior Vice President
Manager Lending Division
By: /s/ Sean O'Sullivan
Name: Sean O'Sullivan
Title: Second Vice President
BAYERISCHE VEREINSBANK AG, NEW YORK BRANCH,
By: /s/ Marianne Weinzinger
Name: Marianne Weinzinger
Title: Vice President
By: /s/ Pamela J. Gillons
Name: Pamela J. Gillons
Title: Assistant Treasurer
CITIBANK, N.A.,
By: /s/ Theodore J. Beck
Name: Theodore J. Beck
Title: Attorney-in-Fact
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
By: /s/ Robert J. Donohue
Name: Robert J. Donohue
Title: Vice President
By: /s/ Tom Ausfahl
Name: Tom Ausfahl
Title: Vice President
CORESTATES BANK, N.A.,
By: /s/ John D. Brady
Name: John D. Brady
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
By: /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior Vice President
<PAGE>
59
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH,
By: /s/ Masayoshi Komaki
Name: Masayoshi Komaki
Title: Vice President
DEN DANSKE BANK AKTIESELSKAB,
By: /s/ Peter L. Hargraves
Name: Peter L. Hargraves
Title: Vice President
By: /s/ John A. O'Neill
Name: John A. O'Neill
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES,
By: /s/ Ralf Hoffmann
Name: Ralf Hoffmann
Title: Vice President
By: /s/ Robert Wood
Name: Robert Wood
Title: Director
THE FIRST NATIONAL BANK OF MARYLAND,
By: /s/ Robert M. Beaver
Name: Robert M. Beaver
Title: Vice President
FIRST UNION BANK OF NORTH CAROLINA,
By: /s/ Mark Harden
Name: Mark Harden
Title: Vice President
FLEET NATIONAL BANK,
By: /s/ Amy M. Tsokanis
Name: Amy M. Tsokanis
Title: Vice President
<PAGE>
60
FUJI BANK, LIMITED,
By: /s/ Toshiaki Yakura
Name: Toshiaki Yakura
Title: Senior Vice President
GULF INTERNATIONAL BANK B.S.C.,
By: /s/ Thomas E. Fitzherbert
Name: Thomas E. Fitzherbert
Title: Vice President
By: /s/ Abdel-Fattah Tahoun
Name: Abdel-Fattah Tahoun
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
By: /s/ John V. Veltri
Name: John V. Veltri
Title: Senior Vice President
ISTITUTO BANCARIO SAN PAOLO DI TORINO SPA,
By: /s/ Gerard M. McKenna
Name: Gerard M. McKenna
Title: Vice President
By: /s/ Robert Worster
Name: Robert Worster
Title: First Vice President
KREDIETBANK N.V., GRAND CAYMAN BRANCH,
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: /s/ Robert M. Surdam, Jr.
Name: Robert M. Surdam, Jr.
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH,
By: /s/ Masanori Shoji
Name: Masanori Shoji
Title: Deputy General Manager
<PAGE>
61
MELLON BANK, N.A.,
By: /s/ Joseph F. Bond, Jr.
Name: Joseph F. Bond, Jr.
Title: Vice President
MERITA BANK LTD, NEW YORK BRANCH,
By: /s/ Frank Maffei
Name: Frank Maffei
Title: Vice President
By: /s/ John Kehnle
Name: John Kehnle
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION,
By: /s/ Hachiro Hosoda
Name: Hachiro Hosoda
Title: Senior Vice President
MORGAN GUAANTY TRUST COMPANY OF NEW YORK,
By: /s/ Diana H. Imhof
Name: Diana H. Imhof
Title: Vice President
NATIONAL BANK OF KUWAIT S.A.K.,
By: /s/ Muhannad Kamal
Name: Muhannad Kamal
Title: Executive Manager
By: /s/ Stephen A. Larson
Name: Stephen A. Larson
Title: Executive Manager
NATIONSBANK, N.A.,
By: /s/ Marcus A. Boyer
Name: Marcus A. Boyer
Title: Senior Vice President
NORTHERN TRUST COMPANY,
By: /s/ James F. T. Minhart
Name: James F. T. Minhart
Title: Vice President
<PAGE>
62
SAKURA BANK, LIMITED, NEW YORK BRANCH,
By: /s/ Yasumasa Kikuchi
Name: Yasumasa Kikuchi
Title: Senior Vice President
THE SANWA BANK LIMITED, NEW YORK BRANCH,
By: /s/ Joseph E. Leo
Name: Joseph E. Leo
Title: Vice President and Area Manager
SOCIETE GENERALE,
By: /s/ Robert Petersen
Name: Robert Petersen
Title: Vice President
STATE STREET BANK & TRUST COMPANY,
By: /s/ L. Dan Lobdell
Name: L. Dan Lobdell
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
By: /s/ Yoshinori Kawamura
Name: Yoshinori Kawamura
Title: Joint General Manger
SUMMIT BANK,
By: /s/ Arty C. Zulawski
Name: Arty C. Zulawski
Title: Senior Vice President
SWISS BANK CORPORATION, NEW YORK BRANCH,
By: /s/ Mark Crameri
Name: Mark Crameri
Title: Associate Director Credit Risk Mgmt.
SBC Warburg
By: /s/ Dorothy L. McKinley
Name: Dorothy L. McKinley
Title: Associate Director Banking
Finance Support, N.A.
<PAGE>
63
TORONTO DOMINION (NEW YORK), INC.,
By: /s/ Debbie A. Greene
Name: Debbie A. Greene
Title: Vice President
THE TOYO TRUST & BANKING CO., LTD.,
By: /s/ Takashi Mikumo
Name: Takashi Mikumo
Title: Vice President
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
By: /s/ Samuel Azizo
Name: Samuel Azizo
Title: Vice President
By: /s/ Dieter Hoeppli
Name: Dieter Hoeppli
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
By: /s/ Terence A. Snellings
Name: Terence A. Snellings
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
By: /s/ Ralph White
Name: Ralph White
Title: Vice President
By: /s/ James Veneau
Name: James Veneau
Title: Senior Analyst
WESTPAC BANKING CORPORATION,
By: /s/ Kate V. Perry
Name: Kate V. Perry
Title: Assistant Vice President
<PAGE>
1
EXHIBIT 10.2
$3,000,000,000
CREDIT AGREEMENT
Dated as of May 2, 1997,
among
RAYTHEON COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN,
BANCAMERICA SECURITIES, INC.,
as Syndication Agent,
CANADIAN IMPERIAL BANK OF COMMERCE
and
CREDIT SUISSE FIRST BOSTON,
as Documentation Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT FACILITY
<PAGE>
2
CREDIT AGREEMENT dated as of May 2, 1997 (this "Agreement"), among
RAYTHEON COMPANY, a Delaware corporation (the "Borrower"), the Lenders (as
defined in Article I), BANCAMERICA SECURITIES, INC., as Syndication Agent (in
such capacity, the "Syndication Agent"), CANADIAN IMPERIAL BANK OF COMMERCE and
CREDIT SUISSE FIRST BOSTON, as Documentation Agents (in such capacity, each a
"Documentation Agent" and, collectively, the "Documentation Agents"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders.
Pursuant to an asset purchase agreement dated as of January 4, 1997
(the "Asset Purchase Agreement"), between the Borrower and Texas Instruments
Incorporated, a Delaware corporation ("TI"), the Borrower intends, subject to
the conditions set forth in the Asset Purchase Agreement (such term and each
other capitalized term used but not defined herein having the meaning given to
it in Article I), to acquire all the assets and assume certain of the
liabilities (the "TI Acquisition") of the defense business of TI. The Borrower
also intends, subject to the conditions set forth in the Hughes Merger
Agreement, to combine its business with the defense business of HE Holdings,
Inc., a Delaware corporation ("Hughes"), by merging (the "Hughes Merger") with
and into Hughes pursuant to an Agreement and Plan of Merger dated as of January
16, 1997 (the "Hughes Merger Agreement"), between the Borrower and Hughes. The
Borrower has requested the Lenders to extend credit in the form of Revolving
Loans at any time and from time to time prior to the Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of
$3,000,000,000. The Borrower has requested the Lenders to provide a procedure
pursuant to which the Borrower may invite the Lenders to bid on an uncommitted
basis on short-term Borrowings by the Borrower. The proceeds of the Loans are to
be used (a) to finance the TI Acquisition, (b) to repay in full all outstanding
amounts under the Borrower's existing Credit Agreement dated as of April 28,
1995 (as amended, the "Existing Credit Agreement"), and (c) to pay related fees
and expenses. In addition, the proceeds of the Loans may be used to provide
working capital and for other general corporate purposes of the Borrower,
including commercial paper backup.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions set forth herein. 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 Loan bearing interest at the Alternate Base
Rate in accordance with the provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
<PAGE>
3
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall mean the Administrative Agent, the Syndication Agent and th
Documentation Agents.
"Agents' Fees" shall have the meaning assigned to such term in Section
2.06(b).
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. 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 Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c), or
both, of the preceding sentence, as appropriate, 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, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan (other than any Eurodollar Competitive Loan), or with respect to
the Facility Fees, as the case may be, the applicable percentage set forth below
under the caption "Eurodollar Spread" or "Fee Percentage", as the case may be,
based upon the ratings by S&P and Moody's, respectively, applicable on such date
to the Index Debt:
Eurodollar Fee
Spread Percentage
Category 1
AA- or higher by S&P
Aa3 or higher by Moody's .135% .045%
Category 2
A+ or A by S&P
A1 or A2 by Moody's .175% .050%
Category 3
A- by S&P
A3 by Moody's .195% .055%
Category 4
BBB+ by S&P
Baa1 by Moody's .230% .070%
<PAGE>
4
Category 5
BBB by S&P
Baa2 by Moody's .250% .100%
Category 6
BBB- by S&P
Baa3 by Moody's .325% .125%
Category 7
Less than BBB- by S&P
Less than Baa3 by Moody's .400% .150%
For purposes of the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), then such
rating agency shall be deemed to have established a rating in Category 7; (ii)
if the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings unless the ratings
differ by more than one category, in which case the governing rating shall be
the rating next below the higher of the two; (iii) until the aggregate
commitments under this Agreement, the 5-year Agreement and the Hughes Credit
Agreements are reduced below $8,000,000,000, the Eurodollar Spread will be
increased by 0.05% at all times that the aggregate amounts outstanding hereunder
and under the 5-year Agreement exceed 66 2/3% of the aggregate commitments
(whether used or unused) hereunder and under the 5-year Agreement; and (iv) if
the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt 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 applicable rating agency. Each 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 Borrower and the Lenders shall
negotiate in good faith to amend 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.
"Asset Sale" shall mean the sale, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries to any person other than
the Borrower or any of its wholly owned Subsidiaries of any capital stock or
assets owned by such person other than inventory, obsolete or worn out assets or
accounts receivable, in each case disposed of in the ordinary course of
business; provided, however, that any asset sale or series of related asset
sales described above having a value not in excess of $25,000,000 shall not be
deemed an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate. The term "Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
<PAGE>
5
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other domestic banking authority
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
Dollars of over $100,000 with maturities approximately equal to three months.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage. The term "Assessment Rate" shall
mean for any date the annual rate (rounded upwards, if necessary, to the next
1/100 of 1%) most recently estimated by the Administrative Agent as the then
current net annual assessment rate that will be employed in determining amounts
payable by the Administrative Agent to the Federal Deposit Insurance Corporation
(or any successor) for insurance by such Corporation (or such successor) of time
deposits made in Dollars at the Administrative Agent's domestic offices.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (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.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.04 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
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 (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
"Closing Date" shall mean May 2, 1997.
"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 to make Revolving Loans hereunder as set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.10 or pursuant to Section 2.17, and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Borrower pursuant to Section 2.03(d) in the form of Exhibit D-4.
<PAGE>
6
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive
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 D-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 by the Borrower
under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated April 1997.
"Consolidated Net Tangible Assets" shall mean, as at any date of
determination, the total amount of assets of the Borrower and the Subsidiaries
(less applicable depreciation, amortization and other valuation reserves) at
such date, after deducting therefrom (a) all current liabilities of the Borrower
and the Subsidiaries at such date and (b) all goodwill, trade names, trademarks,
patents, unamortized debt issuance fees and expenses and other like intangibles
at such date.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Debt Issuance" shall mean the public or private issuance or series of
related issuances by the Borrower or any Subsidiary of Indebtedness for money
borrowed in an aggregate principal amount in excess of $50,000,000 with a
maturity greater than 270 days; provided, however, that none of the following
shall be considered a "Debt Issuance" for purposes of this Agreement: (a)
Indebtedness incurred under this Agreement, the 5-year Agreement or the Hughes
Credit Agreements, (b) Indebtedness incurred under Section 6.04 (other than
Section 6.04(h)) of each of this Agreement, the 5-year Agreement or the Hughes
Credit Agreements and (c) Indebtedness of the Borrower of the type described in
Section 6.04(c).
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of America.
"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 Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
<PAGE>
7
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice
that Withdrawal Liability is being imposed or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; and (h) the occurrence of a non-exempt
"prohibited transaction" with respect to which the Borrower or any of its
Subsidiaries is a "disqualified person" (within the meaning of Section 4975) of
the Code, or with respect to which the Borrower or any such Subsidiary could
otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"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 Revolving Loan or
Eurodollar Competitive Loan.
"Eurodollar Revolving Credit Borrowing" shall mean a Borrowing
comprised of Eurodollar Revolving Loans.
"Eurodollar Revolving Loan" shall mean any Revolving 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
VII.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the preamble.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"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 published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average 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.
"Fee Letter" shall mean the Fee Letter dated April 3, 1997, between the
Borrower and the Administrative Agent and the Syndication Agent (and/or an
Affiliate thereof).
"Fees" shall mean the Facility Fees and the Agents' Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation and, with respect to the Borrower, shall also
mean the Vice President - Project and International Finance.
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8
"5-year Agreement" shall mean the 5-year Credit Agreement dated as of
the date hereof among the Borrower, the lenders party thereto and the Agents.
"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 in the
United States applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Hughes" shall have the meaning assigned to such term in the preamble.
"Hughes Credit Agreements" shall mean the 364-day and five-year credit
agreements to be entered into by, among others, Hughes, as borrower, Hughes
Aircraft Company, as guarantor, the lenders party thereto, BancAmerica
Securities, Inc., as syndication agent, and The Chase Manhattan Bank, as
administrative agent.
"Hughes Merger" shall have the meaning assigned to such term in the
preamble.
"Hughes Merger Agreement" shall have the meaning assigned to such term
in the preamble.
"Indebtedness" of any person shall mean, as at any date of
determination, all indebtedness (including capitalized lease obligations) of
such person and its consolidated subsidiaries at such date that would be
required to be included as a liability on a consolidated balance sheet
(excluding the footnotes thereto) of such person prepared in accordance with
GAAP applied on a basis consistent with the application used in the financial
statements referred to in Section 3.05(a).
"Index Debt" shall mean the senior, unsecured, non-credit enhanced,
long-term indebtedness for borrowed money of the Borrower.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, except with respect to any ABR Loan, the
date of any prepayment of such Loan or conversion of such Loan to a Loan of a
different Type.
"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 earlier of (i) the next succeeding March
31, June 30, September 30 or December 31 and (ii) the Maturity Date 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 offer to
make the Fixed Rate Loans comprising such Borrowing was 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
<PAGE>
9
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing 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.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing, the
rate (rounded upwards, if necessary, to the next 1/100 of 1%) at which Dollar
deposits approximately equal in principal amount to (i) in the case of a
Revolving Credit 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 Revolving Credit
Borrowing, and for a maturity comparable to such Interest Period are offered to
the principal London office 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, with respect to any asset of any person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities that
constitute assets of such person, any purchase option, call or similar right of
a third party with respect to such securities.
"Loans" shall mean the Revolving Loans and the Competitive Loans.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage 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 Stock" shall have the meaning assigned to such term in Regulation U.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole.
"Maturity Date" shall mean May 1, 1998.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
gross cash proceeds (including, without limitation, cash proceeds, whenever
received, of any non-cash consideration) of such Asset Sale less the sum of (i)
the reasonable costs associated therewith, including taxes (as estimated by the
Borrower or any of its Subsidiaries, as the case may be, in good faith),
brokers' and advisors' fees and commissions, (ii) payments of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness required to be, and which in fact is, paid or prepaid under the
terms thereof as a result of such Asset Sale and (iii) appropriate amounts as a
reserve, in accordance with GAAP, against any liabilities directly associated
<PAGE>
10
with the capital stock or assets sold and which liabilities are retained by the
Borrower or any of its Subsidiaries after such Asset Sale (provided that such
amounts shall constitute Net Cash Proceeds as and when they are released from
such reserve) and (b) with respect to any Debt Issuance, cash proceeds net of
underwriting commissions or placement fees and expenses directly incurred in
connection therewith less the amount thereof used substantially concurrently
with the receipt thereof to repay or prepay short-term Indebtedness of the
Borrower or its Subsidiaries or the current maturities of long-term Indebtedness
of the Borrower or its Subsidiaries.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Permitted Receivables Program" shall mean any receivables
securitization program pursuant to which the Borrower or any of the Subsidiaries
sells accounts receivable to any non-Affiliate in a "true sale" transaction;
provided, however, that any related indebtedness incurred to finance the
purchase of such accounts receivable is not includible on the balance sheet of
the Borrower or any Subsidiary in accordance with GAAP and applicable
regulations of the Securities and Exchange Commission.
"person" shall mean any natural person, corporation, limited liability
company, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"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 or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"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 being
effective.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least a majority of the sum of all Commitments at such time or,
for purposes of acceleration pursuant to clause (ii) of the last paragraph of
Article VII, Lenders having Loans and unused Commitments representing at least a
majority of the sum of all Loans outstanding and unused Commitments.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
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11
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's Ratings Service.
"Significant Subsidiary" shall mean, at any time, any Subsidiary that
would be a "Significant Subsidiary" at such time, as such term is defined in
Regulation S-X promulgated by the Securities and Exchange Commission as in
effect on the Closing Date.
"Stockholders' Equity" shall mean, as at any date of determination, the
stockholders' equity at such date (or as of the most recent practicable date
preceding such date (but in no event earlier than the last day of the fiscal
quarter preceding such date)) of the Borrower and its consolidated Subsidiaries,
as determined in accordance with GAAP.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held or (b) that is, at the time any
determination is made, otherwise 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 any subsidiary of the Borrower.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"TI Acquisition" shall have the meaning assigned to such term in the
preamble.
"Total Capitalization" shall mean, as at any date of determination, the
sum of Total Debt at such date and Stockholders' Equity at such date.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Total Debt" shall mean, as at any date of determination, all
Indebtedness of the Borrower and its consolidated Subsidiaries at such date.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"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
<PAGE>
12
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the LIBO Rate and the Alternate Base Rate.
"Wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"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 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, (a) any reference to this Agreement shall mean this
Agreement as amended, restated, supplemented or otherwise modified from time to
time and (b) 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 the covenants contained in Article
VI, all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05(a).
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 Revolving Loans to the Borrower, at
any time and from time to time on or after the Closing Date, and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (a)(i) such Lender's Revolving
Credit Exposure exceeding (ii) such Lender's Commitment or (b)(i) the aggregate
amount of outstanding Loans exceeding (ii) the Total Commitment. Within the
limits set forth in the preceding sentence, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans on or after the Closing Date and prior to
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Revolving 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 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 Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1,000,000 and not less than $10,000,000 or (ii) equal to the
remaining available balance of the Total Commitment.
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13
(b) Subject to Sections 2.09 and 2.15, each Competitive Borrowing shall
be comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans, and
each Revolving Credit Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the 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 any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in more than 15 Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) 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 such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall by 12:00
(noon), New York City time, credit the amounts so received to an account with
the Administrative Agent designated by the Borrower in the applicable Borrowing
Request or Competitive Bid Request, which account must be in the name of the
Borrower 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.
(d) 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 paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent within one Business Day of demand
therefor such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). 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.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request (i) in the case of
a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before the proposed date of such 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 the proposed date of such Borrowing. A Competitive
Bid Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request. 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 D-1 may be rejected by the
Administrative Agent and the Administrative Agent shall notify the Borrower of
such rejection as promptly as practicable. Each Competitive Bid Request shall
refer to this Agreement and specify (i) whether the Borrowing being requested is
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14
to be a Eurodollar Competitive Borrowing or a Fixed Rate Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number and the
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the
aggregate principal amount of such Borrowing, which shall be a minimum of
$10,000,000 and an integral multiple of $1,000,000 and not greater than the
Total Commitment then available; and (v) the Interest Period with respect
thereto (which may not end after the Maturity Date). Promptly after its receipt
of a Competitive Bid Request that is not rejected, the Administrative Agent
shall by telecopy in the form set forth in Exhibit D-2 invite the Lenders to bid
to make Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent by telecopy in the form of Exhibit D-3,
(i) in the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days before the proposed date of such
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 proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the format of
Exhibit D-3 may be rejected by the Administrative Agent, and the Administrative
Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) 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 such Loan or Loans and (z) the Interest Period
applicable to such Loan or Loans and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been made and
the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid. The 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 each Competitive Bid, (x) in the case of a
Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before the date of the 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 proposed date of the Competitive Borrowing; provided, however,
that (i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed (but may be less than) the principal amount specified in the Competitive
Bid Request, (iv) if the Borrower shall accept a Competitive Bid or Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid or Bids
would cause the total amount to be accepted by the Borrower to exceed the amount
specified in the Competitive Bid Request, then the Borrower shall accept a
portion of such Competitive Bid or Bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids so accepted, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Bid and (v) except pursuant to clause
(iv) above, no Competitive 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 Competitive Bids at a
<PAGE>
15
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so, in
what amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, upon the terms and subject to the conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
SECTION 2.04. Borrowing Procedure. In order to request a Borrowing
(other than a Competitive Borrowing, as to which this Section 2.04 shall not
apply), the Borrower shall hand deliver or telecopy to the Administrative Agent
a duly completed Borrowing Request (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before a
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 10:00
a.m., New York City time, on the day of a proposed Borrowing. Each Borrowing
Request shall be irrevocable, signed by or on behalf of the Borrower and shall
specify the following information: (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day); (iii) the number and location of
the account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)); (iv) the amount of such
Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar 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 the contents thereof), and of each Lender's
portion of the requested Borrowing.
SECTION 2.05. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby agrees that the outstanding principal balance of each Revolving Loan
shall be payable on the Maturity Date and the outstanding principal balance of
each Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest from and including the date of
such Loan on the outstanding principal balance thereof as set forth in Section
2.07.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid 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 thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) of this Section 2.05 shall 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
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16
any error therein shall not in any manner affect the obligations of the Borrower
to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year, and on the date on which the Commitment of such Lender
shall be terminated as provided herein, a facility fee (a "Facility Fee") equal
to the Applicable Percentage per annum in effect from time to time on the
average daily amount of the Commitment of such Lender (whether used or unused)
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which the Commitment of such
Lender shall expire or 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 be terminated as provided
herein.
(b) The Borrower agrees to pay to each of the Agents or their
Affiliates, for their own account, the fees set forth in the Fee Letter at the
times and in the amounts specified therein (the "Agents' Fees").
(c) All Fees shall be paid on the dates due, in immediately available
funds. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, 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, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate.
(b) Subject to the provisions of Section 2.08, 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 Revolving Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Percentage in effect from time
to time and (ii) in the case of each 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 Borrower pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.08, each Fixed Rate Loan
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 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 the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or LIBO 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 2.08. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
<PAGE>
17
amount to but excluding the date of actual payment (after as well as before
judgment) (a) in the case of overdue principal, at the rate otherwise applicable
to such Loan pursuant to Section 2.07 plus 2.00% per annum and (b) in all other
cases, at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when determined by
reference to the Prime Rate and over a year of 360 days at all other times)
equal to the sum of the Alternate Base Rate plus 2.00%.
SECTION 2.09. Alternate Rate of Interest. 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 that (a) Dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or (b) the rates at which such Dollar deposits are being offered will
not adequately and fairly reflect the cost to Lenders having Commitments
representing at least 20% of the Total Commitment of making or maintaining
Eurodollar Loans during such Interest Period, or (c) reasonable means do not
exist for ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination (other than
any such determination pursuant to clause (b) of the preceding sentence, to the
extent the circumstances giving rise to such determination would also give
Lenders the right to demand additional amounts pursuant to Section 2.14), until
the Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any request by
the Borrower for a Eurodollar Revolving Credit Borrowing pursuant to Section
2.04 shall be deemed to be a request for an ABR Borrowing and (ii) any request
by the 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.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments.
(a) The Commitments shal automatically terminate on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $10,000,000 and (ii) the Total Commitment shall not be reduced to an
amount that is less than the sum of the Aggregate Revolving Credit Exposure and
the aggregate outstanding principal amount of the Competitive Loans at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders
in accordance with their respective Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.11. Conversion and Continuation of Revolving Credit
Borrowings. The Borrower shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (a) not later than 10:00 a.m., New York City
time, on the day of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
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18
(ii) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, then each resulting Borrowing shall satisfy the
limitations specified in Sections 2.02(a) and 2.02(b) regarding the principal
amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by recording for the
account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being
converted by an equivalent principal amount; accrued interest on any Eurodollar
Loan (or portion thereof) being converted shall be paid by the Borrower at the
time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the end
of the Interest Period applicable thereto, the Borrower shall pay, upon demand,
any amounts due to the Lenders pursuant to Section 2.16;
(vi) any portion of a Eurodollar Borrowing that cannot be converted into or
contin ued as a Eurodollar Borrowing by reason of the immediately preceding
clause shall be automatically converted at the end of the Interest Period in
effect for such Borrowing into an ABR Borrowing.
Each notice pursuant to this Section 2.11 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted into or continued as a Eurodollar Borrowing or an
ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted into or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto (which may not end after the Maturity Date). If no Interest
Period is specified in any such notice with respect to any conversion into or
continuation as a Eurodollar 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 2.11
and of each Lender's portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.11 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.11 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as an ABR Borrowing. The Borrower shall not have the
right to continue or convert the Interest Period with respect to any Competitive
Borrowing pursuant to this Section 2.11.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing (other than a
Competitive Borrowing), in whole or in part, upon at least three Business Days'
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent before 11:00 a.m., New
York City time; provided, however, that each partial prepayment shall be in an
amount that is an integral multiple of $1,000,000 and not less than $10,000,000.
The Borrower shall not have the right to prepay any Competitive Borrowing.
(b) In the event of any termination of the Commitments, the Borrower
shall repay or prepay all its outstanding Revolving Credit Borrowings on the
date of such termination. In the event of any partial reduction of the
Commitments, then (i) at or prior to the effective date of such reduction, the
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19
Administrative Agent shall notify the Borrower and the Lenders of the Aggregate
Revolving Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure
would exceed the available Total Commitment after giving effect to such
reduction, the Borrower shall, on the date of such reduction, repay or prepay
Revolving Credit Borrowings in an amount sufficient to eliminate such excess.
(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 Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments of Eurodollar Loans 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. Required Commitment Reductions and Prepayments. (a) If
prior to the second anniversary of the Closing Date the Borrower or any
Subsidiary shall complete any Asset Sale, then within three Business Days of the
receipt by the Borrower or any Subsidiary of any Net Cash Proceeds therefrom,
the Borrower shall on such date permanently reduce the Commitments and/or the
commitments under the 5-year Agreement and/or, after the consummation of the
Hughes Merger, the commitments under one or both of the Hughes Credit
Agreements, at the option of the Borrower, by an aggregate amount, which when
aggregated with all required commitment reductions made pursuant to Section
2.13(a) or (b) prior to such date, shall equal at least 75% of the aggregate Net
Cash Proceeds of such Asset Sale and all other Asset Sales and Debt Issuances
made prior to such date and, to the extent the outstanding Loans would exceed
the Total Commitment as so reduced, prepay any Revolving Loans then outstanding
on or prior to the effectiveness of such reduction by an amount sufficient to
eliminate such excess.
(b) If prior to the second anniversary of the Closing Date the Borrower
or any Subsidiary shall complete any Debt Issuance, then within three Business
Days of the receipt by the Borrower or any Subsidiary of any Net Cash Proceeds
therefrom, the Borrower shall on such date permanently reduce the Commitments
and/or the commitments under the 5-year Agreement and/or, after the consummation
of the Hughes Merger, the commitments under one or both of the Hughes Credit
Agreements, at the option of the Borrower, by an aggregate amount, which when
aggregated with all required commitment reductions made pursuant to Section
2.13(a) or (b) prior to such date, shall equal at least 75% of the aggregate Net
Cash Proceeds of such Debt Issuance and all other Debt Issuances and Asset Sales
made prior to such date and, to the extent the outstanding Loans would exceed
the Total Commitment as so reduced, prepay any Revolving Loans then outstanding
on or prior to the effectiveness of such reduction by an amount sufficient to
eliminate such excess.
(c) In the event any prepayment required by Section 2.13(a) or (b) with
respect to any Revolving Loan would become due on a date that is not the last
day of the relevant Interest Period therefor and as a result thereof the
Borrower would incur liabilities under Section 2.16, then (i) if the last day of
the relevant Interest Period for such Loan would occur within 180 days of the
date on which such prepayment is otherwise due, and (ii) no Default or Event of
Default shall have occurred and be continuing, such prepayment may be made at
the Borrower's election on the last day of the relevant Interest Period for such
Loan and, pending such prepayment, the Borrower shall deposit such Net Cash
Proceeds with the Administrative Agent which shall hold such Net Cash Proceeds
for the benefit of the Lenders, in an interest bearing account, until such time
as such proceeds can be applied towards payment of the Loans in accordance with
the provisions of this Agreement without resulting in any liability to the
Borrower under Section 2.16. Until such Loans are so prepaid they shall continue
to accrue interest as provided hereunder, provided that all interest which may
accrue on any amounts so held in escrow shall be delivered by the Administrative
Agent to the Borrower following prepayment of the principal of and accrued
interest on such Loans.
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SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, 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 impose, modify or deem applicable 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 impose on such Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made 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 hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that the adoption after the
date hereof of any law, rule, regulation, agreement or guideline regarding
capital adequacy, or any change after the date hereof in any such law, rule,
regulation, agreement or guideline (whether such law, rule, regulation,
agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company with any request
or directive regarding capital adequacy (whether or not having the force of law)
of any Governmental Authority has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company (including the
calculation thereof) as specified in paragraph (a) or (b) above shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay 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 shall not constitute a waiver of such Lender's
right to demand such compensation. 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, agreement, guideline or other
change or condition that shall have occurred or been imposed. Notwithstanding
any other provision of this Section, no Lender shall be entitled to demand
compensation hereunder in respect of any Competitive Loan if it shall have been
aware of the event or circumstance giving rise to such demand at the time it
submitted the Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the date hereof, 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 Borrower and to the Administrative Agent:
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21
(i) such Lender may declare that Eurodollar Loans will not thereafter (for
the duration of such unlawfulness) be made by such Lender hereunder (or be
continued for additional Interest Periods and ABR Loans will not thereafter (for
such duration) be converted into Eurodollar Loans), whereupon such Lender shall
not submit a Competitive Bid in response to a request for a Eurodollar
Competitive Loan and any request for a Eurodollar Borrowing (or to convert an
ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan unless such declaration shall be subsequently withdrawn
(or a request to continue an ABR Loan as such for an additional Interest Period
or to convert a Eurodollar Loan into an ABR Loan, as the case may be); and
(ii) such Lender may require that all outstanding Eurodollar Loans made by
it be converted to ABR Loans, in which 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 that 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 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, 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 by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of any event, other than a default by such Lender in the performance
of its obligations hereunder, that results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Fixed Rate Loan
or Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case prior to
the end of the Interest Period in effect therefor or (iii) any Fixed Rate Loan
or Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to
be made pursuant to a conversion or continuation under Section 2.11) not being
made after notice of such Loan shall have been given by the Borrower hereunder
(any of the events referred to in this sentence being called a "Breakage
Event"). In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan or Fixed Rate Loan that is the subject
of such Breakage Event for the period from the date of such Breakage Event to
the last day of the Interest Period in effect (or that would have been in
effect) for such Loan over (ii) the amount of interest likely to be realized by
such Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in the two succeeding
sentences with respect to Competitive Borrowings and as required under Section
2.15, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Facility Fees, each
reduction of the Commitments and each continuation or conversion of any
Borrowing to a 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 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
<PAGE>
22
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 that 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 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Loans as
a result of which the unpaid principal portion of its Revolving Loans shall be
proportionately less than the unpaid principal portion of the Revolving 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 Revolving Loans of such other Lender,
so that the aggregate unpaid principal amount of the Revolving Loans and
participations in Revolving Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Revolving Loans then
outstanding as the principal amount of its Revolving Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Revolving 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 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Revolving Loan deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Revolving Loan
directly to the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder not later than 12:00 (noon), New York City time, on the date
when due in immediately available Dollars, without defense, setoff or
counterclaim. Each such payment shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any 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 Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.19, 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 Administrative Agent or such Lender
<PAGE>
23
(or Transferee) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities, collectively or individually, being called
"Taxes"). If the Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent or any Lender
(or any Transferee), (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) the Administrative Agent or such Lender (or Transferee), as the case may
be, shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to 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 Borrower will indemnify the Administrative Agent and each
Lender (or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (or Transferee), 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,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by the Administrative Agent or a Lender (or
Transferee), 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 Administrative Agent or any
Lender (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent or a Lender (or Transferee) receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has 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 Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.20 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
Lender (or Transferee), shall repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent or such Lender
(or Transferee) in the event the Administrative Agent or such Lender (or
Transferee) 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 Borrower to the relevant Governmental Authority, the Borrower
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.
(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 each of the Borrower 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
<PAGE>
24
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 Section 871(h)(3)(B) of the Code) of the Borrower and is
not a controlled foreign corporation related to the Borrower (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 Borrower 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 Borrower 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 paragraph (h) shall not apply (x) 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
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (h)) 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 not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.20 shall require any Lender (or
any 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).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender delivers a certificate
requesting compensation pursuant to Section 2.14, (ii) any Lender delivers a
notice described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20, the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee which shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (x) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (y) the Borrower shall have received the prior written consent of
the Administrative Agent, which consent shall not unreasonably be withheld, and
(z) the Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of the principal of and
<PAGE>
25
interest accrued to the date of such payment on the outstanding Loans of such
Lender plus all Fees and other amounts accrued for the account of such Lender
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's claim for compensation under Section 2.14
or notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as
the case may be, cease to cause such Lender to suffer increased costs or
reductions in amounts received or receivable or reduction in return on capital,
or cease to have the consequences specified in Section 2.15, or cease to result
in amounts being payable under Section 2.20, as the case may be (including as a
result of any action taken by such Lender pursuant to paragraph (b) below), or
if such Lender shall waive its right to claim further compensation under Section
2.14 in respect of such circumstances or event or shall withdraw its notice
under Section 2.15 or shal waive its right to further payments under Section
2.20 in respect of such circumstances or event, as the case may be, then such
Lender shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender shall request compensation under Section 2.14,
(ii) any Lender delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority on account of any Lender, pursuant to Section 2.20, then,
such Lender shall use reasonable efforts (which shall not require such Lender to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any
action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such filing, assignment,
delegation and transfer.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and
each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect. The
Borrower has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to borrow hereunder. Schedule 3.01 sets
forth each Significant Subsidiary of the Borrower in existence on the Closing
Date.
SECTION 3.02. Authorization. The execution, delivery and performance by
the Borrower of this Agreement and the borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
Significant Subsidiary, (B) any order of any Governmental Authority or (C) any
material provision of any material indenture, agreement or other instrument to
which the Borrower or any Significant Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in material conflict
with, result in a material breach of or constitute (alone or with notice or
<PAGE>
26
lapse of time or both) a material default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such material indenture, agreement or other instrument or
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by the Borrower or any
Significant Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
those which have been made or obtained.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its consolidated balance sheet, statement of income and
statement of cash flows as of and for the fiscal year ended December 31, 1996,
audited by and accompanied by the opinion of Coopers & Lybrand, independent
public accountants. Such financial statements present fairly the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries as of such date and for such period. Such balance sheet and the
notes thereto disclose all material liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated financial statements as of December 31, 1996, prepared
giving effect to the TI Acquisition as if it had occurred on such date. Such pro
forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum (which assumptions are
believed by the Borrower on the date hereof to be reasonable), are based on the
best information available to the Borrower as of the date of delivery thereof,
accurately reflect all adjustments required to be made to give effect to the TI
Acquisition and present fairly on a pro forma basis the estimated consolidated
financial position of the Borrower and its consolidated Subsidiaries as of
December 31, 1996, assuming that the TI Acquisition had actually occurred at
January 1, 1996.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, since
December 31, 1996.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.07, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect. Except as set forth on Schedule 3.07, to
the knowledge of the Borrower, on the Closing Date there are not any actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or threatened against or affecting the defense business of
TI or any business, property or rights relating thereto (i) that involve this
Agreement or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
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27
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority
(including any of the foregoing relating to the environment), where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U or X.
Margin Stocks do not constitute 25% or more of the fair market value of the
assets of the Borrower and the Subsidiaries subject to the restrictions of
Section 6.01.
SECTION 3.09. Investment Company Act; Public Utility Holding Company
Act. Neither the 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 3.10. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal and all material state, local and
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes shown to be due and payable by it on such returns
and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiaries, as applicable, shall have set aside on its books adequate reserves
in accordance with GAAP.
SECTION 3.11. No Material Misstatements. None of (a) the information
contained in the Confidential Information Memorandum and relating to the
Borrower and its Subsidiaries, (b) to the best knowledge of the Borrower, the
information contained in the Confidential Memorandum and relating to TI or the
assets and businesses to be acquired in the TI Acquisition or (c) any other
information, report, financial statement, exhibit or schedule furnished in
writing by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or included herein
or delivered pursuant hereto contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast or projection, the Borrower represents
only that it acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto before the Closing Date, exceed the fair market value of the assets of
such Plan, and the present value of all benefit liabilities of all underfunded
Plans (based on those assumptions used to fund each such Plan) did not, as of
the last annual valuation dates applicable thereto before the Closing Date,
exceed the fair market value of the assets of all such underfunded Plans.
<PAGE>
28
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 (other
than, in the case of paragraph (b) below, a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 or 2.04, as applicable.
(b) The representations and warranties set forth in Article III 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 (i)
to the extent such representations and warranties expressly relate to an earlier
date and (ii) with respect to any borrowing the proceeds of which are used to
finance the TI Acquisition and at all times following the consummation of the TI
Acquisition, without giving effect to the knowledge qualification contained in
clause (b) of Section 3.11.
(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 Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Borrowing. On the date of the initial Borrowing:
(a) The Administrative Agent shall have received, on behalf of itself and
the Lenders, the favorable written opinions of Thomas D. Hyde, Esq., Vice
President and General Counsel of the Borrower, and (ii) Wachtell, Lipton, Rosen
& Katz, special counsel for the Borrower, substantially to the effect set forth
in Exhibits E and F, respectively, each (A) dated the Closing Date, (B)
addressed to the Agents and the Lenders, and (C) covering such other matters
relating to this Agreement and the transactions contemplated hereby as the
Administrative Agent shall reasonably request, and the Borrower hereby requests
such counsel deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate of incorporation, including all amendments thereto, of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware, and a certificate as to the good standing of the Borrower as of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of the Borrower dated the Closing Date and certifying (A)
that attached thereto is a true and complete copy of the by-laws of the Borrower
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 resolu tions duly adopted by the Board of Directors of
the Borrower 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 of the Borrower has not been amended since the date
of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, 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 Borrower; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Lenders or Cravath, Swaine & Moore,
counsel for the Administrative Agent, may reasonably request.
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29
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(e) The Administrative Agent and the other Agents and their Affiliates
shall have received all Fees and other amounts due and payable on or prior to
the Closing Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(f) The commitments under the Existing Credit Agreement shall have been
terminated and all principal, interest and other amounts outstanding thereunder
shall have been paid in full.
(g) The 5-year Agreement shall have been, or shall simultaneously be,
executed and delivered by the parties thereto and shall be in full force and
effect.
SECTION 4.03. TI Acquisition Borrowings. On the date of each Borrowing
the proceeds of which are used to finance the TI Acquisition:
(a) The Lenders shall be reasonably satisfied with any change occurring
after April 3, 1997, in the structure or terms of the TI Acquisition (including
with respect to the aggregate consideration and other amounts to be paid by the
Borrower).
(b) All consents required to be obtained under the Asset Purchase Agreement
prior to the closing of the TI Acquisition shall have been obtained, except
where the failure to obtain the same would not, individually or in the
aggregate, (i) have a material adverse effect on the TI defense business or (ii)
prohibit the Borrower from operating the TI defense business following the
closing of the TI Acquisition in substantially the same manner as the defense
business was operated by TI prior to such closing, all applicable waiting
periods shall have expired and there shall be no governmental or judicial
action, actual or threatened, restraining, preventing or imposing burdensome
conditions on the TI Acquisition or the transactions contemplated hereby.
(c) There shall be no litigation or administrative proceedings or other
legal or regulatory developments, actual or threatened, that, in the judgment of
the Lenders, involve a reasonable possibility of prohibiting or imposing
burdensome conditions on the TI Acquisition or the transactions contemplated
hereby.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under this Agreement shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and will
cause each of the Subsidiaries to:
<PAGE>
30
SECTION 5.01. Existence; Businesses and Properties. In the case of
the Borrower and the Significant Subsidiaries:
(a) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, except as
otherwise expressly permitted under Section 6.03 and
(b) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted; and at all times maintain, preserve and protect all
property material to the conduct of its business.
SECTION 5.02. Insurance. 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
in the same or similar businesses, provided that nothing in this Section 5.02
shall preclude the Borrower or any Subsidiary from being self-insured (to the
extent deemed prudent by the Borrower or such Subsidiary and customary with
companies in the same or similar business).
SECTION 5.03. Taxes. Pay and discharge promptly when due all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof unless and to the extent the same are
being contested in good faith by appropriate proceedings and adequate reserves
with respect thereto shall, to the extent required by GAAP, have been set aside.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet, statement of income and statement of cash flows showing the
financial condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the operations
of such Subsidiaries during such year, all audited by Coopers & Lybrand or other
independent public accountants of recognized national standing 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 Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal quarters
of each fiscal year, its consolidated balance sheet, statement of income and
statement of cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and the results
of its operations and the operations of such subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial condition and results
of operations of the Borrower on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph
(a) or (b) above, a certificate of a Financial Officer certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto;
<PAGE>
31
(d) promptly after their becoming available, copies of all financial
statements, stockholders reports and proxy statements that the Borrower shall
have sent to its stockholders generally, and copies of all registration
statements filed by the Borrower under the Securities Act of 1933, as amended
(other than registration statements on Form S-8 or any registration statement
filed in connection with a dividend reinvestment plan), and regular and periodic
reports, if any, which the Borrower shall have filed with the Securities and
Exchange Commission (or any governmental agency or agencies substituted
therefor) under Section 13 or Section 15(d) of the Securities and Exchange Act
of 1934, as amended, or with any national securities exchange (other than those
on Form 11-K or any successor form); and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Significant Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Promptly upon any
Responsible Officer of the Borrower obtaining knowledge of any of the following,
furnish to the Administrative Agent and each Lender written notice of the
following:
(b) the filing or commencement of, or any notice of intention of any person
to file or commence, any action, suit or proceeding, whether at law or in equity
or by or before any Governmental Authority, against the Borrower or any
Affiliate thereof that could reasonably be expected to result in a Material
Adverse Effect or materially impair the Borrower's ability to perform its
obligations under this Agreement;
(c) any change in the ratings by S&P or Moody's of the Index Debt; and
(d) any development that has resulted in, or could reasonably be expected
to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender as soon as possible after, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows that, any ERISA Event has occurred that, alone or together with
any other ERISA Event known to have occurred, could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $75,000,000
in any year, a statement of a Financial Officer of the Borrower setting forth
details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain financial records in accordance with GAAP and, upon
reasonable notice, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any Significant Subsidiary during normal business
hours and to discuss the affairs, finances and condition of the Borrower or any
Significant Subsidiary with the officers thereof and independent accountants
therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the preamble to this Agreement.
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32
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under this Agreement have been paid in full,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will not, and will not cause or permit any of the Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower or any of its Subsidiaries
existing on the date hereof except, in the case of the Borrower, any such Lien
securing Indebtedness for borrowed money in excess of $5,000,000 that is not set
forth in Schedule 6.01, provided that all Liens permitted by this paragraph (a)
shall secure only those obligations which they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary (or, in the case of any property or
asset of Hughes or any of its subsidiaries, prior to the consummation of the
Hughes Merger), provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition (or the Hughes Merger) and (ii) such Lien
does not apply to any other property or assets of the Borrower or any
Subsidiary;
(c) Liens for taxes not yet past due or which are being contested in
compliance with Section 5.03;
(f) deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases (other than capital leases), statutory obligations,
surety and appeal bonds, advance payment bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Borrower or any Subsidiary which are created or incurred within 360 days of such
acquisition, construction or improvement to secure or provide for the payment of
any part of the purchase price of such property or the cost of such construction
or improvement, including carrying costs (but no other amounts), provided that
any such Lien shall not apply to any other property of the Borrower or any
Subsidiary;
<PAGE>
33
(k) any Lien of the type described in clause (c) of the definition of the
term "Lien" on securities imposed pursuant to an agreement entered into for the
sale or disposition of such securities pending the closing of such sale or
disposition; provided such sale or disposition is otherwise permitted hereunder;
(l) Liens arising in connection with any Permitted Receivables Program (to
the extent the sale by the Borrower or the applicable Subsidiary of its accounts
receivable is deemed to give rise to a Lien in favor of the purchaser thereof in
such accounts receivable or the proceeds thereof); and
(m) Liens to secure Indebtedness if, immediately after the grant thereof,
the aggregate amount of all Indebtedness secured by Liens that would not be
permitted but for this clause (m), when aggregated with the amount of
Indebtedness permitted by Section 6.04(h), does not exceed the greater of (i)
$100,000,000 or (ii) 15% of Consolidated Net Tangible Assets as shown on the
most recent consolidated balance sheet delivered pursuant to Section 3.05(a) or
5.04(a) or (b), as the case may be.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease back such
property; provided, however, that the Borrower and the Subsidiaries may enter
into any such transaction to the extent the Lien on any such property would be
permitted by Section 6.01(m).
SECTION 6.03. Mergers, Consolidations and Sales of Assets. In the case
of the Borrower, merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of, or permit the sale, transfer, lease or other disposition
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or agree to do any of the foregoing; provided, however, that, if
no Event of Default or Default shall have occurred and be continuing or would
occur immediately after giving effect thereto, (i) any person may merge into or
consolidate with the Borrower in a transaction in which the Borrower is the
surviving corporation, and (ii) the Borrower may consummate the Hughes Merger
substantially on the terms set forth in the Hughes Merger Agreement, without
giving effect to any material waiver or modification thereof not consented to by
the Required Lenders, and immediately upon consummation of the Hughes Merger,
Hughes shall assume all the obligations and be entitled to all the benefits of
the Borrower hereunder.
SECTION 6.04. Subsidiary Indebtedness. Permit any Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.04
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof;
(b) Indebtedness issued to the Borrower or any other Subsidiary;
<PAGE>
34
(c) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that such Indebtedness is incurred prior to
or within 90 days after such acquisition or the completion of such construction
or improvement;
(d) Indebtedness of any person that becomes a Subsidiary after the date
hereof; provided that such Indebtedness exists at the time such person becomes a
Subsidiary and is not created in contemplation of or in connection with such
person becoming a Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of credit;
(f) Indebtedness arising in connection with any Permitted Receivables
Program (to the extent the sale by the applicable Subsidiary of its accounts
receivable is deemed to be Indebtedness of such Subsidiary);
(g) performance, advance payment, warranty and bid guarantees and other
similar guarantees of payment (other than in respect of Indebtedness for
borrowed money) made by a Subsidiary in the ordinary course of business; and
(h) other Indebtedness in an aggregate principal amount, when aggregated
with the amount of all Indebtedness secured by Liens permitted by Section
6.01(m), not exceeding the greater of (i) $100,000,000 outstanding or (ii) 15%
of Consolidated Net Tangible Assets as shown on the most recent consolidated
balance sheet delivered pursuant to Section 3.05(a) or 5.04(a) or (b), as the
case may be.
SECTION 6.05. Debt to Capitalization. Permit Total Debt to exceed (i)
65% of Total Capitalization at any time from the Closing Date to but excluding
July 2, 1999, (ii) 60% of Total Capitalization from and including July 2, 1999
to but excluding January 1, 2002 and (iii) 55% of Total Capitalization from and
after January 1, 2002.
SECTION 6.06. Amendments to Agreements. Amend the Asset Purchase
Agreement or the Hughes Merger Agreement in any manner materially adverse to the
interests of the Lenders.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with 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 or pursuant
to this Agreement, shall prove to have been false or misleading 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;
<PAGE>
35
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
this Agreement (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent or any Lender to the Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $50,000,000, when and as the same shall become due
and payable, or (ii) fail to make any payment under any guarantee, if the
aggregate amount of the guaranteed obligations is in excess of $50,000,000,
except to the extent the Borrower or such Subsidiary is contesting in good faith
the requirement to make such payment, or (iii) 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 (iii) is 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 Borrower or any Significant Subsidiary, or of a substantial part
of the property or assets of the Borrower or a Significant Subsidiary, under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, seques
trator, conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of the property or assets of the Borrower
or a Significant Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any Significant 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 Borrower or any Significant 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, or any other
Federal, state or foreign 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
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary or for a substantial part of the property or assets of
the Borrower or any Significant 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 judgments for the payment of money in an aggregate amount
in excess of $50,000,000 (to the extent not adequately covered by insurance as
to which the insurance company has acknowledged coverage in writing) shall be
rendered against the Borrower, 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 Borrower or any
Subsidiary to enforce any such judgment;
<PAGE>
36
(j) an ERISA Event shall have occurred that, in the reasonable opinion of
the required Lenders, when taken together with all other such ERISA Events that
have occured could reasonably be expected to result in a Material Adverse
Effect; or
(k) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower 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 by the
Borrower, anything contained herein to the contrary notwithstanding; and in any
event with respect to the Borrower 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 Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
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 and each assignee of any such Lender
hereby irrevocably authorizes the Administrative Agent to take such actions on
behalf of such Lender or assignee 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 Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower 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 own gross negligence or wilful 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
Borrower 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 any other instruments or agreements. The Administrative Agent
<PAGE>
37
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (or, when
expressly required hereunder, all the 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 Borrower on account of the failure of or
delay in performance or breach by any 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 Borrower of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties here under 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 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 Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower (which consent
shall not be unreasonably withheld), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, 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 Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder)
of any expenses incurred for the benefit of the Lenders by the Administrative
Agent, including counsel fees, that shall not have been reimbursed by the
Borrower and (b) to indemnify and hold 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 that may be imposed
on, incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this Agreement, to the
extent the same shall not have been reimbursed by the Borrower, provided that no
Lender shall be liable to the Administrative Agent or any such other indemnified
person for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
<PAGE>
38
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,
any related agreement or any document furnished hereunder. Each Lender further
acknowledges that the Syndication Agent and the Documentation Agents have no
duties or obligations as such under this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Unless otherwise specified herein, notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 141 Spring Street, Lexington,
MA 02173, Attention of Mr. Herbert Deitcher (Telecopy No.
617-860-2505), with a copy to it at 141 Spring Street, Lexington, MA
02173, Attention of General Counsel (Telecopy No. 617-860-2626);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, One
Chase Manhattan Plaza, 8th Floor, New York, New York 10017, Attention
of [ ] (Telecopy No. (212) 552-5658), with a copy to The Chase
Manhattan Bank, at 270 Park Avenue, New York, New York 10017,
Attention of [ ] (Telecopy No.212-[ ]); 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 shall have become 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 or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) 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 Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any 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 Fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitments have not been terminated. The
provisions of Sections 2.14, 2.16, 2.20 and 9.05 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 expiration of the Commitments, 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.
<PAGE>
39
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
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 permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(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 an
Affiliate of such Lender, (x) the Borrower and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld) and (y) the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $25,000,000 (or the entire
remaining amount of the assigning Lender's Commitment), unless such Lender is
making a substantially simultaneous assignment to the same assignee pursuant to
Section 9.04(b) of the 5-year Agreement, in which case the aggregate of the
amount of the Commitment of the assigning Lender subject to the assignment under
this Agreement and the amount of the commitment of the assigning Lender subject
to the assignment under the 5-year Agreement shall not be less than $25,000,000,
(ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (iii) 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 speci fied 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 2.14, 2.16, 2.20 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
(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 and that
its Commitment, and the outstanding balances of its Revolving Loans and
Competitive Loans, in each case without giving effect to assignments thereof
<PAGE>
40
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any
Subsidiary or the performance or observance by the Borrower or any Subsidiary of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in Section 3.05 or
delivered pursuant to Section 5.04 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, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The Borrower, the Administrative
Agent and the Lenders may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary, and such entries in the
Register shall be conclusive absent manifest error. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, 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 Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and
the Borrower. No assignment shall be effective unless it has been recorded in
the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent 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) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.16 and 2.20 (and shall
have the duty to mitigate under Section 2.21) to the same extent as if they were
Lenders and (iv) the Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower 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 increasing or
extending the Commitments).
<PAGE>
41
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, "Company Private" or
"Proprietary", each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of 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, the 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 the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
(j) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01 or
2.03(e), provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
(and, if such Loan is a Competitive Loan, shall be deemed to utilize the
Commitments of all the Lenders) to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the related Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 9.04 or in Section 9.16, any SPC may (i)
with notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Lender or to any
financial institutions providing liquidity and/or credit facilities to or for
the account of such SPC to fund the Loans made by such SPC or to support
the securities (if any) issued by such SPC to fund such Loans and (ii) disclose
on a confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agents in connection with the syndication
of the credit facilities provided for herein and the preparation and
administration of this Agreement or in connection with any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by
the Administrative Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement or in connection with
the Loans made hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent,
and, in connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel (including the allocated charges
of in-house counsel) for the Administrative Agent or any Lender. The Borrower
shall not be obligated to reimburse out-of-pocket legal expenses pursuant to the
preceding sentence for more than one law firm for the Agents incurred in
connection with the preparation of this Agreement or in connection with any
particular amendment, modification or waiver of the provisions hereof.
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42
(b) The Borrower agrees to indemnify the Administrative Agent and each
Lender, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
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 and
the other transactions contemplated hereby, (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 result from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 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 expiration of the Commitments, 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 9.05 shall be payable on written demand
therefor.
SECTION 9.06. 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
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 the account of the Borrower against any of and all the
obligations of the Borrower 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. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. 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 that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or the payment of any Facility Fee, 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)
change or extend the Commitment or decrease the Facility Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
provisions of Section 2.17, the provisions of Section 9.04(i), the provisions of
this Section or the definition of the term "Required Lenders", without the prior
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
<PAGE>
43
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any other 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 and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY 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 THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. 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 and therein 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.
<PAGE>
44
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Agreement.
SECTION 9.14. 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 9.15. Jurisdiction; Consent to Service of Process. (a) The
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.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(b) The 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 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 9.16. Confidentiality. The Administrative Agent and each of the
Lenders agrees to keep confidential (and to use its best efforts to cause its
respective agents and representatives to keep confidential) the Information (as
defined below) and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that the Administrative Agent or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority or examining authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process, (d)
in connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder, (e) to the extent permitted by Section 9.04(g), or (f) to
the extent such Information (i) becomes publicly available other than as a
<PAGE>
45
result of a breach of this Agreement or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" shall
mean all financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent or any Lender based on any of the foregoing) that are received from the
Borrower or any Subsidiary and related to the Borrower, any Subsidiary or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and
which are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential, "Company Private" or
"Proprietary". The provisions of this Section 9.16 shall remain operative and in
full force and effect regardless of the expiration and term of this Agreement.
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.
RAYTHEON COMPANY
By: /s/ Herbert Deitcher
Name: Herbert Deitcher
Title: Senior Vice President-Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ B. Joseph Lillis
Name: B. Joseph Lillis
Title: Managing Director
BANCAMERICA SECURITIES, INC., as
Syndication Agent,
By: /s/ John A. Finan
Name: John A. Finan
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
By: /s/Deborah J. Graziano
Name: Deborah J. Graziano
Title: Vice President
<PAGE>
46
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Documentation Agent,
By: /s/Timothy E. Doyle
Name: Timothy E. Doyle
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON, individually
and as Documentation Agent,
By: /s/Lynn Allegaert
Name: Lynn Allegaert
Title: Vice President
By: /s/David W. Kratovil
Name: David W. Kratovil
Title: Director
ABN AMRO BANK N.V.,
By: /s/Carol A. Levine
Name: Carol A. Levine
Title: Senior Vice President and Managing Director
By: /s/ James E. Davis
Name: James E. Davis
Title: Group Vice President and Director
ARAB BANK PLC, GRAND CAYMAN BRANCH,
By: /s/Nofal S. Barbar
Name: Nofal S. Barbar
Title: EVP & Regional Manager
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
By: /s/Christine S. Pomeranz
Name: Christine S. Pomeranz
Title: Vice President
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
By: /s/ Karen Purelis
Name: Karen Purelis
Title: Vice President
By: /s/ Charles Dougherty
Name: Charles Dougherty
Title: Vice President
<PAGE>
47
BANCA NAZIONALE DEL LAVORO S.P.A
NEW YORK BRANCH,
By: /s/ Giuliano Violetta
Name: Giuliano Violetta
Title First Vice President
By: /s/ Miguel J. Medida
Name: Miguel J. Medida
Title: Vice President
BANCA POPOLARE DI MILANO,
By: /s/ Anthony Franco
Name: Anthony Franco
Title: Executive Vice President & General Manager
By: /s/ Fulvio Montanari
Name: Fulvio Montanari
Title: First Vice President
BANKBOSTON N.A.,
By: /s/ Roberta F. Keeler
Name: Roberta F. Keeler
Title: Vice President
BANK BRUSSEL LAMBERT, NEW YORK
BRANCH,
By: /s/ John Kippax
Name: John Kippax
Title: Vice President & Manager
By: /s/ Dominick H. J. Vangaever
Name: Dominick H. J. Vangaever
Title: Senior Vice President-Credit
BANK OF MONTREAL,
By: /s/ W. T. Calder
Name: W. T. Calder
Title: Director
<PAGE>
48
THE BANK OF NEW YORK,
By: /s/ Peter H. Abdill
Name: Peter H. Abdill
Title: Vice President
THE BANK OF NOVA SCOTIA,
By: /s/ Tim Pitcher
Name: Tim Pitcher
Title: Authorized Signatory
BANKERS TRUST COMPANY,
By: /s/ Gina S. Thompson
Name: Gina S. Thompson
Title: Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR,
By: /s/ Pieter J. van Tulder
Name: Pieter J. van Tulder
Title: Vice President and Manager
Multinational Group
BANQUE NATIONALE DE PARIS,
By: /s/ Richard L. Sted
Name: Richard L. Sted
Title: Senior Vice President
By: /s/ Thomas George
Name: Thomas George
Title: Vice President
Corporate Banking Division
BANQUE PARIBAS,
By: /s/ John J. McCormick, III
Name: John J. McCormick, III
Title: Vice President
By: /s/ Mary T. Finnegan
Name: Mary T. Finnegan
Title: Group Vice President
<PAGE>
49
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS BRANCH,
By: /s/ Peter Obermann
Name: Peter Obermann
Title: Senior Vice President
Manager Lending Division
By: /s/ Sean O'Sullivan
Name: Sean O'Sullivan
Title: Second Vice President
BAYERISCHE VEREINSBANK AG, NEW YORK BRANCH,
By: /s/ Marianne Weinzinger
Name: Marianne Weinzinger
Title: Vice President
By: /s/ Pamela J. Gillons
Name: Pamela J. Gillons
Title: Assistant Treasurer
CITIBANK, N.A.,
By: /s/ Theodore J. Beck
Name: Theodore J. Beck
Title: Attorney-in-Fact
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
By: /s/ Robert J. Donohue
Name: Robert J. Donohue
Title: Vice President
By: /s/ Tom Ausfahl
Name: Tom Ausfahl
Title: Vice President
CORESTATES BANK, N.A.,
By: /s/ John D. Brady
Name: John D. Brady
Title: Assistant Vice President
<PAGE>
50
CREDIT LYONNAIS NEW YORK BRANCH,
By: /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH,
By: /s/ Kim P. Leary
Name: Kim P. Leary
Title: Vice President
DEN DANSKE BANK AKTIESELSKAB,
By: /s/ Peter L. Hargraves
Name: Peter L. Hargraves
Title: Vice President
By: /s/ John A. O'Neill
Name: John A. O'Neill
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES,
By: /s/ Ralf Hoffmann
Name: Ralf Hoffmann
Title: Vice President
By: /s/ Robert Wood
Name: Robert Wood
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO,
By: /s/ Jeffrey Lubatkin
Name: Jeffrey Lubatkin
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF
MARYLAND,
By: /s/ Robert M. Beaver
Name: Robert M. Beaver
Title: Vice President
<PAGE>
51
FIRST UNION BANK OF NORTH CAROLINA,
By: /s/ Mark Harden
Name: Mark Harden
Title: Vice President
FLEET NATIONAL BANK,
By: /s/ Amy M. Tsokanis
Name: Amy M. Tsokanis
Title: Vice President
FUJI BANK, LIMITED,
By: /s/ Toshiaki Yakura
Name: Toshiaki Yakura
Title: Senior Vice President
GULF INTERNATIONAL BANK B.S.C.,
By: /s/ Thomas E. Fitzherbert
Name: Thomas E. Fitzherbert
Title: Vice President
By: /s/ Abdel-Fattah Tahoun
Name: Abdel-Fattah Tahoun
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
By: /s/ John V. Veltri
Name: John V. Veltri
Title: Senior Vice President
ISTITUTO BANCARIO SAN PAOLO DI TORINO SPA,
By: /s/ Gerard M. McKenna
Name: Gerard M. McKenna
Title: Vice President
By: /s/ Robert Worster
Name: Robert Worster
Title: First Vice President
<PAGE>
52
KREDIETBANK N.V., GRAND CAYMAN BRANCH,
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: /s/ Robert M. Surdam, Jr.
Name: Robert M. Surdam, Jr.
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH,
By: /s/ Masanori Shoji
Name: Masanori Shoji
Title: Deputy General Manager
MELLON BANK, N.A.,
By: /s/ Joseph F. Bond, Jr.
Name: Joseph F. Bond, Jr.
Title: Vice President
MERITA BANK LTD, NEW YORK BRANCH,
By: /s/ Frank Maffei
Name: Frank Maffei
Title: Vice President
By: /s/ John Kehnle
Name: John Kehnle
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION,
By: /s/ Hachiro Hosoda
Name: Hachiro Hosoda
Title: Senior Vice President
BANK OF TOKYO MITSUBISHI LIMITED,
By: /s/ Michael J. Cronin
Name: Michael J. Cronin
Title: Attorney-in-Fact
<PAGE>
53
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
By: /s/ Diana H. Imhof
Name: Diana H. Imhof
Title: Vice President
NATIONAL BANK OF KUWAIT S.A.K.,
By: /s/ Muhannad Kamal
Name: Muhannad Kamal
Title: Executive Manager
By: /s/ Stephen A. Larson
Name: Stephen A. Larson
Title: Executive Manager
NATIONSBANK, N.A.,
By: /s/ Marcus A. Boyer
Name: Marcus A. Boyer
Title: Senior Vice President
NORTHERN TRUST COMPANY,
By: /s/ James F. T. Minhart
Name: James F. T. Minhart
Title: Vice President
SAKURA BANK, LIMITED,
NEW YORK BRANCH,
By: /s/ Yasumasa Kikuchi
Name: Yasumasa Kikuchi
Title: Senior Vice President
THE SANWA BANK LIMITED, NEW YORK BRANCH,
By: /s/ Joseph E. Leo
Name: Joseph E. Leo
Title: Vice President and Area Manager
SOCIETE GENERALE,
By: /s/ Robert Petersen
Name: Robert Petersen
Title: Vice President
<PAGE>
54
STATE STREET BANK & TRUST COMPANY,
By: /s/ L. Dan Lobdell
Name: L. Dan Lobdell
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
By: /s/ Yoshinori Kawamura
Name: Yoshinori Kawamura
Title: Joint General Manger
SUMMIT BANK,
By: /s/ Arty C. Zulawski
Name: Arty C. Zulawski
Title: Senior Vice President
SWISS BANK CORPORATION, NEW YORK BRANCH,
By: /s/ Mark Crameri
Name: Mark Crameri
Title: Associate Director Credit Risk Mgmt.
SBC Warburg
By: /s/ Dorothy L. McKinley
Name: Dorothy L. McKinley
Title: Associate Director Banking
Finance Support, N.A.
TORONTO DOMINION (NEW YORK), INC.,
By: /s/ Debbie A. Greene
Name: Debbie A. Greene
Title: Vice President
THE TOYO TRUST & BANKING CO., LTD.,
By: /s/ Takashi Mikumo
Name: Takashi Mikumo
Title: Vice President
<PAGE>
55
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
By: /s/ Samuel Azizo
Name: Samuel Azizo
Title: Vice President
By: /s/ Dieter Hoeppli
Name: Dieter Hoeppli
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
By: /s/ Terence A. Snellings
Name: Terence A. Snellings
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
By: /s/ Ralph White
Name: Ralph White
Title: Vice President
By: /s/ James Veneau
Name: James Veneau
Title: Senior Analyst
WESTPAC BANKING CORPORATION,
By: /s/ Kate V. Perry
Name: Kate V. Perry
Title: Assistant Vice President
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