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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): SEPTEMBER 10, 1998
BOSTON SCIENTIFIC CORPORATION
(Exact name of registrant as specified in charter)
DELAWARE 1-11083 04-2695240
(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation)
ONE BOSTON SCIENTIFIC PLACE, NATICK, MASSACHUSETTS 01760-1537
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (508) 650-8000
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 10, 1998, Boston Scientific Corporation (the "Company")
announced that it had completed its acquisition of Schneider Worldwide, a member
of the Medical Technology Group of Pfizer Inc., for $2.1 billion in cash. The
purchase price was funded by the issuance of commercial paper.
The commercial paper issued will not be and has not been registered
under the Securities Act of 1933. Purchasers of the commercial paper may not
reoffer or resell it in the United States absent registration or an applicable
exemption from registration requirements.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of the Business Acquired
Financial statements required by this item will be filed by
amendment to this initial report no later than 60 days after
the date an initial report must be filed with the Securities
and Exchange Commission.
(b) Pro forma Financial Information
Pro forma financial information required by this item will be
filed by amendment to this initial report no later than 60
days after the date an initial report must be filed with the
Securities and Exchange Commission.
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(c) Exhibits
Exhibit Number Description
10.1 Form of Second Amended and Restated Credit Agreement dated
September 4, 1998 among Boston Scientific Corporation, The
Several Lenders and certain other parties.
10.2 Form of Credit Agreement dated September 4, 1998 among Boston
Scientific Corporation, The Several Lenders and certain other
parties.
10.3 Form of Credit Agreement dated September 9, 1998 among Boston
Scientific Corporation, The Several Lenders and Merrill Lynch
Capital Corporation.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: September 25, 1998 By: /s/ Lawrence C. Best
------------------------------------------
Lawrence C. Best
Senior Vice President - Finance and
Administration and Chief Financial Officer
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Exhibit 10.1
SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
among
BOSTON SCIENTIFIC CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
ABN AMRO BANK N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
BARCLAYS BANK PLC,
as Syndication Agent,
CHASE SECURITIES INC.,
as Arranger and as Book Manager,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 4, 1998
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TABLE OF CONTENTS
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Page
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<S> <C>
SECTION 1. DEFINITIONS.................................................... 1
1.1 Defined Terms.................................................. 1
1.2 Other Definitional Provisions.................................. 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................ 20
2.1 Revolving Credit Commitments................................... 20
2.2 Procedure for Revolving Credit Borrowing....................... 20
2.3 Facility Fee; Utilization Fee.................................. 21
2.4 Termination or Reduction of Commitments; Extension of
Termination Date............................................. 21
2.5 Repayment of Revolving Credit Loans............................ 23
2.6 CAF Advances................................................... 23
2.7 Procedure for CAF Advance Borrowing............................ 23
2.8 Repayment of CAF Advances...................................... 26
2.9 Certain Restrictions with Respect to CAF Advances............... 26
2.10 Multicurrency Commitments...................................... 26
2.11 Repayment of Multicurrency Loans;.............................. 27
2.12 Procedure for Multicurrency Borrowing.......................... 27
2.13 Termination or Reduction of Multicurrency Commitments.......... 27
2.14 Borrowings of Revolving Credit Loans and Refunding of Loans.... 28
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS..................... 29
3.1 Optional and Mandatory Prepayments............................. 29
3.2 Conversion and Continuation Options............................ 30
3.3 Minimum Amounts and Maximum Number of Tranches................. 31
3.4 Interest Rates and Payment Dates............................... 31
3.5 Computation of Interest and Fees............................... 32
3.6 Inability to Determine Interest Rate........................... 33
3.7 Pro Rata Treatment and Payments................................ 33
3.8 Illegality..................................................... 35
3.9 Requirements of Law............................................ 35
3.10 Taxes.......................................................... 37
3.11 Indemnity...................................................... 38
3.12 Change of Lending Office; Removal of Lender.................... 38
3.13 Evidence of Debt............................................... 39
SECTION 4. LOCAL CURRENCY FACILITIES...................................... 40
4.1 Terms of Local Currency Facilities............................. 40
4.2 Reporting of Local Currency Outstandings....................... 41
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Page
SECTION 5. REPRESENTATIONS AND WARRANTIES................................. 42
5.1 Financial Condition............................................ 42
5.2 No Change...................................................... 42
5.3 Corporate Existence; Compliance with Law....................... 43
5.4 Corporate Power; Authorization; Enforceable Obligations........ 43
5.5 No Legal Bar................................................... 43
5.6 No Material Litigation......................................... 43
5.7 No Default..................................................... 44
5.8 Intellectual Property.......................................... 44
5.9 Taxes.......................................................... 44
5.10 Federal Regulations............................................ 44
5.11 ERISA.......................................................... 44
5.12 Investment Company Act; Other Regulations...................... 45
5.13 Purpose of Loans............................................... 45
5.14 Environmental Matters.......................................... 45
5.15 Disclosure..................................................... 46
5.16 Year 2000 Matters.............................................. 46
SECTION 6. CONDITIONS PRECEDENT........................................... 47
6.1 Conditions to Initial Loans.................................... 47
6.2 Conditions to Each Loan........................................ 48
SECTION 7. AFFIRMATIVE COVENANTS.......................................... 48
7.1 Financial Statements........................................... 48
7.2 Certificates; Other Information................................ 49
7.3 Payment of Obligations......................................... 49
7.4 Conduct of Business and Maintenance of Existence............... 49
7.5 Maintenance of Property; Insurance............................. 50
7.6 Inspection of Property; Books and Records; Discussions......... 50
7.7 Notices........................................................ 50
7.8 Consummation of Schneider Acquisition.......................... 51
SECTION 8. NEGATIVE COVENANTS............................................. 51
8.1 Funded Debt Ratio.............................................. 51
8.2 Limitation on Liens............................................ 51
8.3 Limitation on Fundamental Changes.............................. 52
SECTION 9. EVENTS OF DEFAULT.............................................. 53
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Page
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER, THE BOOK MANAGER
AND THE SYNDICATION AGENTS......................................55
10.1 Appointment.....................................................55
10.2 Delegation of Duties............................................56
10.3 Exculpatory Provisions..........................................56
10.4 Reliance by Administrative Agent................................56
10.5 Notice of Default...............................................57
10.6 Non-Reliance on Administrative Agent and Other Lenders..........57
10.7 Indemnification.................................................57
10.8 Administrative Agent In Its Individual Capacity.................58
10.9 Successor Administrative Agent..................................58
10.10 The Arranger, the Book Manager and the Syndication Agents.......58
SECTION 11. GUARANTEE.......................................................59
11.1 Guarantee.......................................................59
11.2 No Subrogation..................................................59
11.3 Amendments, etc. with respect to the Obligations;
Waiver of Rights................................................59
11.4 Guarantee Absolute and Unconditional............................60
11.5 Reinstatement...................................................61
11.6 Payments........................................................61
11.7 "Lenders".......................................................61
SECTION 12. MISCELLANEOUS...................................................61
12.1 Amendments and Waivers..........................................61
12.2 Notices.........................................................62
12.3 No Waiver; Cumulative Remedies..................................63
12.4 Survival of Representations and Warranties......................63
12.5 Payment of Expenses and Taxes...................................64
12.6 Successors and Assigns; Participations and Assignments..........64
12.7 Adjustments; Set-off............................................67
12.8 Counterparts....................................................67
12.9 Severability....................................................67
12.10 Integration.....................................................67
12.11 GOVERNING LAW...................................................68
12.12 Submission To Jurisdiction; Waivers.............................68
12.13 Acknowledgements................................................68
12.14 European Economic and Monetary Union............................69
12.15 Confidentiality.................................................72
12.16 Loan Conversion/Participations..................................72
12.17 Judgment........................................................73
12.18 WAIVERS OF JURY TRIAL...........................................73
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SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule II Information Concerning Local Currency Loans
Schedule 8.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Local Currency Facility Addendum
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September
4, 1998, among (i) BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the
"Borrower"), (ii) the Lenders (as herein after defined), (iii) ABN AMRO BANK
N.V., a Dutch banking association, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association, and BARCLAYS BANK PLC, a banking
corporation organized under the laws of England, as Syndication Agents (each in
such capacity, a "Syndication Agent", and collectively, the "Syndication
Agents"), (iv) CHASE SECURITIES INC., as Arranger (in such capacity, the
"Arranger") and as Book Manager (in such capacity, the "Book Manager"), and (v)
THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent for the Lenders hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Lenders, the Arranger, the
Administrative Agent and others are parties to the Amended and Restated Credit
Agreement, dated as of June 10, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Existing Credit Agreement"); and
WHEREAS, this Second Amended and Restated Credit Agreement amends
the Existing Credit Agreement in a manner requiring the consent of the Majority
Lenders (as defined in and with respect to the Existing Credit Agreement),
including the consent of each Lender (as defined therein) increasing any of its
Commitments;
WHEREAS, the Majority Lenders (as defined in and with respect to the
Existing Credit Agreement), including such Lenders, and the other parties hereto
have agreed to amend and restate the Existing Credit Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree that on the Closing Date the Existing Credit Agreement will be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 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%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City (the Prime Rate not
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being intended to be the lowest rate of interest charged by Chase in
connection with extensions of credit to debtors); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "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 of Governors of the Federal
Reserve System (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; and "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 which 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. Any change in
the ABR due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Revolving Credit Loans bearing interest based upon
the ABR.
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 12.16, minus the amount of any participating interests sold by
such Lender pursuant to subsection 12.16.
"Administrative Agent": Chase, together with its Affiliates, as
the arranger of the Commitments and as the agent for the Lenders under
this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or
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cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Aggregate Available Multicurrency Commitments": as at any date
of determination with respect to all Multicurrency Lenders, an amount
in Dollars equal to the sum of the Available Multicurrency Commitments
of all Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any
date of determination with respect to all Lenders, an amount in Dollars
equal to the sum of the Available Revolving Credit Commitments of all
Lenders on such date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in Dollars equal to the sum of (a)
the Aggregate Revolving Credit Outstandings of such Lender on such date,
(b) the Dollar Equivalent of the Aggregate Multicurrency Outstandings of
such Lender on such date and (c) the Dollar Equivalent of the Aggregate
Local Currency Outstandings of such Lender on such date.
"Aggregate Local Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Local Currencies equal to the aggregate unpaid principal amount of such
Lender's Local Currency Loans.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, an amount in Dollars equal to
the aggregate unpaid principal amount of such Lender's Revolving Credit
Loans on such date.
"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in Dollars equal to the sum of (a) the
Aggregate Revolving Credit Outstandings of such Lender on such date, (b)
the Dollar Equivalent of the aggregate unpaid principal amount of such
Lender's CAF Advances on such date, (c) the Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Lender on such date and (d)
the Dollar Equivalent of the Aggregate Local Currency Outstandings of such
Lender on such date.
"Agreement": this Second Amended and Restated Credit Agreement,
as amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 12.17(b).
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"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
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Eurodollar Loans
Rating /Multicurrency Loans ABR Loans
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<S> <C> <C>
Rating I .220% 0%
Rating II .250% 0%
Rating III .275% 0%
Rating IV .325% 0%
Rating V .500% 0%
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"Assignee": as defined in subsection 12.6(c).
"Available Foreign Currencies": Deutsche Marks, French Francs,
Japanese Yen, Irish Pounds and any other available and
freely-convertible non-Dollar currency selected by the Borrower and
approved by the Administrative Agent and the Multicurrency Lenders.
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans required to
be made on such date pursuant to subsection 2.14), an amount in Dollars
equal to the lesser of (a) the excess, if any, of (i) the amount of such
Multicurrency Lender's Multicurrency Commitment in effect on such date
over (ii) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender on such date and (b) the excess,
if any, of (i) the amount of such Lender's Revolving Credit Commitment in
effect on such date over (ii) the Aggregate Committed Outstandings of such
Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the
making and payment of any Revolving Credit Loans required to be made on
such date pursuant to subsection 2.14), an amount in Dollars equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Committed
Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Book Manager": as defined in the preamble hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2, 2.7 or 2.12 as a date on which the Borrower requests the
Lenders to make Loans hereunder or, with respect to Local Currency Loans,
the date on which a Foreign Subsidiary Borrower requests Local Currency
Lenders to make Local
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Currency Loans to such Foreign Subsidiary Borrower pursuant to the
Local Currency Facility to which such Foreign Subsidiary Borrower and
Local Currency Lenders are parties.
"Business": as defined in subsection 5.14.
"Business Day": (a) when such term is used in respect of a day on
which a Loan denominated in an Available Foreign Currency or Local
Currency is to be made, a payment is to be made in respect of such Loan,
an Exchange Rate is to be set in respect of such Available Foreign
Currency or Local Currency or any other dealing in such Available Foreign
Currency or Local Currency is to be carried out pursuant to this
Agreement, such term shall mean a London Banking Day which is also a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of issuance of such
Available Foreign Currency or Local Currency, (b) when such term is used
to describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Loan or a LIBO Rate
CAF Advance, such day shall be a London Banking Day and (c) when such term
is used in any context in this Agreement (including as described in the
foregoing clauses (a) and (b)), such term shall mean a day which, in
addition to complying with any applicable requirements set forth in the
foregoing clause (a) and (b), is a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF Advance Availability Period": the period from and including
the Closing Date to and including the date which is 7 days prior to the
Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information
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specified in Exhibit D and shall be delivered to the Administrative Agent
by telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the Borrower for Lenders to
submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit
C and shall be delivered to the Administrative Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by
facsimile transmission.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. Section 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution in
the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars having
a maturity of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Closing Date": the first date, on or before December 31, 1998,
on which the conditions precedent set forth in subsection 6.1 shall be
satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commitments": the collective reference to the Revolving Credit
Commitments and the Multicurrency Commitments.
"Committed Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate
Committed Outstandings of all Lenders.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Consolidated Funded Debt": at any time, all Indebtedness of the
Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth": at any time, all amounts which would, in
accordance with GAAP, be included under shareholders' equity or classified
as temporary equity, as prescribed by the Financial Accounting Standards
Board or Securities and Exchange Commission (e.g. contingent stock
repurchase obligations), on a consolidated balance sheet of the Borrower
and its Subsidiaries as at such time; provided, that in computing
Consolidated Net Worth, no deductions shall be made with respect to
charges for purchased research and development related to the Schneider
Acquisition.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under Section 9(e) has occurred or (b) the Commitments shall
have been terminated and/or the Loans shall have been declared
immediately due and payable pursuant to Section 9.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans of such Lender outstanding in any currency other than
Dollars, the percentage of such Loans such that, after giving effect to
the conversion of such Loans to Dollars and the purchase and sale by such
Lender of participating interests as contemplated by subsection 12.16, the
Committed Outstandings Percentage of such Lender will equal such Lender's
Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to any termination or expiration of the
Commitments on the Conversion Date).
"Converted Loans: as defined in subsection 12.16(a).
"Default": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollar Equivalent": with respect to an amount denominated in any
currency other than Dollars, the equivalent in Dollars of such amount
determined at the Exchange Rate on the date of determination of such
equivalent. In making any determination of the Dollar Equivalent for
purposes of calculating the amount of Loans to be borrowed from the
respective Lenders on any Borrowing Date, the Administrative Agent shall
use the relevant Exchange Rate in effect on the date on
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which the interest rate for such Loans is determined pursuant to the
provisions of this Agreement and the other Loan Documents.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes, ordinances,
codes, decrees, or other enforceable requirements or orders of any
Governmental Authority or other Requirements of Law regulating, relating
to or imposing liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time hereafter be in
effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Base Rate": (a) with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, or a Multicurrency Loan
or CAF Advance denominated in any currency other than Pounds Sterling, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in the applicable currency with a term comparable to
such Interest Period that appears on the applicable Telerate Page at
approximately 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period; provided, however, that if at any time
for any reason such offered rate for any such currency does not appear on
a Telerate Page, "Eurocurrency Base Rate" shall mean, with respect to each
day during each Interest Period pertaining to a Loan denominated in such
currency, the rate per annum equal to the average (rounded upward to the
nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered deposits in such currency at or about
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period in the London interbank market for delivery on the first
day of such Interest Period for the number of days comprised therein; and
(b) with respect to each day during each Interest Period pertaining to a
Multicurrency Loan or CAF Advance denominated in Pounds Sterling, the rate
per annum equal to the average (rounded upward to the nearest 1/16th of
1%) of the respective rates notified to the Administrative Agent by each
of the Reference Lenders as the rate at which such Reference Lender is
offered deposits in Pounds Sterling at or about 11:00 A.M., London time,
two Business Days prior to the beginning of such Interest Period in the
Paris interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
<PAGE> 14
9
"Eurocurrency Reserve Requirements": for any day as applied to a
Loan, the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurocurrency Rate for Dollars.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which (i) the sum of the
Aggregate Total Outstandings of all Lenders, plus the Aggregate Total
Outstandings of all Lenders under (and as defined in) the 364-Day
Agreement, exceeds (ii) 50% of the aggregate amount of the Revolving
Credit Commitments hereunder and the Revolving Credit Commitments under
(and as defined in) the 364-Day Agreement (or, in each case, with respect
to any day after termination of such Revolving Credit Commitments, 50% of
the aggregate amount of such Revolving Credit Commitments in effect on the
date immediately prior to the date on which such Revolving Credit
Commitments terminated).
"Exchange Rate": with respect to any non-Dollar currency on any
date, the rate at which such currency may be exchanged into Dollars, as
set forth on such date on the relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does
not appear on any Reuters currency page, the "Exchange Rate" with respect
to such non-Dollar currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the absence of
such agreement, such "Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its foreign
currency exchange operations in respect of such non-Dollar currency are
then being conducted, at or about 10:00 A.M., local time, on such date for
the purchase of Dollars with such non-Dollar currency, for delivery two
Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"Existing Credit Agreement": as defined in the recitals hereto.
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
<PAGE> 15
10
<TABLE>
<CAPTION>
Facility
Rating Fee Rate
------ --------
<S> <C>
Rating I .080%
Rating II .100%
Rating III .125%
Rating IV .175%
Rating V .250%
</TABLE>
"Fee Commencement Date": the earlier of (i) October 5, 1998 and
(ii) the Closing Date.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurocurrency Rate plus (or minus)
a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the Borrower
organized under the laws of a jurisdiction outside the United States
that the Borrower designates as a "Foreign Subsidiary Borrower" in a
Local Currency Facility Addendum.
"Funding Commitment Percentage": as at any date of determination
(after giving effect to the making and payment of any Loans made on such
date pursuant to subsection 2.14), with respect to any Lender, that
percentage which the Available Revolving Credit Commitment of such Lender
then constitutes of the Aggregate Available Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 5.1.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other unrelated
<PAGE> 16
11
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and earn-outs and other similar obligations in respect of
acquisition and other similar agreements), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases, (d)
all obligations of such Person in respect of acceptances issued or created
for the account of such Person and (e) all liabilities secured by any Lien
on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December, (b) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period longer than three months,
each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest
Period.
<PAGE> 17
12
"Interest Period": (a) with respect to any Eurodollar Loan or
Multicurrency Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three or six months
(or, if available to all Lenders, nine or twelve months) thereafter,
as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months (or, if
available to all Lenders, nine or twelve months) thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period in respect of any Loan made by any
Lender that would otherwise extend beyond the Termination Date
applicable to such Lender shall end on such Termination Date; and
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period beginning
on the Borrowing Date with respect thereto and ending on the CAF Advance
Maturity Date with respect thereto.
"Judgment Currency": as defined in subsection 12.17(b).
"Lenders": collectively, each of the Lenders (as defined in the
Existing Credit Agreement) which are parties to the Existing Credit
Agreement on the Signing Date, and each other entity which becomes a
Lender hereunder on or after the Signing Date.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
<PAGE> 18
13
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the
Eurocurrency Rate for the currency of such CAF Advance plus (or minus) a
margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Revolving Credit Loan, CAF Advance, Multicurrency
Loan or Local Currency Loan, as the case may be.
"Loan Documents": this Agreement, any Notes and any document or
instrument evidencing or governing any Local Currency Facility.
"Loans to be Converted": as defined in subsection 12.16(a).
"Local Currency": any available and freely convertible
non-Dollar currency selected by a Foreign Subsidiary Borrower and
approved by the Administrative Agent.
"Local Currency Facility": any Qualified Credit Facility that
the Borrower designates as a "Local Currency Facility" pursuant to a
Local Currency Facility Addendum.
"Local Currency Facility Addendum": a Local Currency Facility
Addendum received by the Administrative Agent, substantially in the
form of Exhibit I, and conforming to the requirements of Section 4.
"Local Currency Facility Agent": with respect to each Local Currency
Facility, the Local Currency Lender acting as agent for the Local Currency
Lenders parties thereto (and, in the case of any Local Currency Facility
to which only one Lender is a party, such Lender).
"Local Currency Facility Maximum Borrowing Amount": as defined
in subsection 4.1(b).
"Local Currency Lender": any Lender (or, if applicable, any
Affiliate, branch or agency thereof) party to a Local Currency Facility.
"Local Currency Lender Maximum Borrowing Amount": as defined in
subsection 4.1(b).
"Local Currency Loan": any loan made pursuant to a Local
Currency Facility.
<PAGE> 19
14
"London Banking Day": any day on which banks in London are open
for general banking business, including dealings in foreign currency
and exchange.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, Lenders, the Revolving Credit Commitment
Percentages of which aggregate more than 50%; and (b) at any time after
the termination of the Revolving Credit Commitments, Lenders whose
Aggregate Total Outstandings aggregate more than 50% of the Aggregate
Total Outstandings of all Lenders; provided that for purposes of this
definition, the Aggregate Total Outstandings of each Lender shall be
adjusted upward or downward so as to give effect to any participations or
assignments effected pursuant to subsection 12.16.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders the Multicurrency Commitment Percentages of which aggregate
more than 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or
thereunder; provided that the acquisition related charges and purchased
research and development recorded or to be recorded in respect of the
Schneider Acquisition shall not be a Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to the Borrower in an
aggregate amount in Available Foreign Currencies the Dollar Equivalent of
which does not exceed at any time outstanding the amount set forth
opposite such Multicurrency Lender's name in Schedule I under the heading
"Multicurrency Commitment", as such amount may be reduced from time to
time as provided in subsection 2.13 and the other applicable provisions
hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment at such time constitutes of the aggregate
Multicurrency Commitments of all Multicurrency Lenders at such time (or,
if the Multicurrency Commitments have terminated or expired, the
percentage which (a) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender at such time constitutes of (b)
the Dollar Equivalent of the Aggregate Multicurrency Outstandings of all
Multicurrency Lenders at such time).
<PAGE> 20
15
"Multicurrency Lender": each Lender having an amount greater
than zero set forth opposite such Lender's name in Schedule I under the
heading "Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 2.10.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Non-Multicurrency Lender": each Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to any Revolving Credit Notes
and any CAF Advance Notes.
"Notice of Local Currency Outstandings": with respect to each Local
Currency Facility Agreement, a notice from the relevant Local Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Local Currency
Outstandings in Schedule II.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower containing the information
in respect of such Loan, delivered to the Person, in the manner and by the
time, specified for a Notice of Multicurrency Loan Borrowing in respect of
the currency of such Loan in Schedule II.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower containing the information
in respect of such Loan, delivered to the Person, in the manner and by the
time, specified for a Notice of Multicurrency Loan Continuation in respect
of the currency of such Loan in Schedule II.
"Obligations": collectively, the unpaid principal of and interest on
the Loans and all other obligations and liabilities of each Foreign
Subsidiary Borrower under this Agreement and any Local Currency Facility
and other Loan Documents to which it is a party (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the
Loans and interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Foreign Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, the
Notes, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of
principal, interest,
<PAGE> 21
16
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required to be paid by
any Foreign Subsidiary Borrower pursuant to the terms of this Agreement or
any other Loan Document).
"Participant": as defined in subsection 12.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Properties": as defined in subsection 5.14.
"Qualified Credit Facility": a credit facility (a) providing for one
or more Local Currency Lenders to make loans denominated in a Local
Currency to a Foreign Subsidiary Borrower, (b) providing for such loans to
bear interest at a rate or rates determined by the Borrower and such Local
Currency Lender or Local Currency Lenders and (c) otherwise conforming to
the requirements of Section 4.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV and Rating V.
"Rating I, Rating II, Rating III, Rating IV and Rating V": the
respective Ratings set forth below:
<PAGE> 22
17
<TABLE>
<CAPTION>
Rating
Category S&P Moody's
-------- --- -------
<S> <C> <C>
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
Rating IV lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating V lower than or equal lower than or equal
to BB+ to Ba1
</TABLE>
; provided, that (i) if on any day the Ratings of the Rating Agencies do
not fall in the same Rating Category, and the lower of such Ratings (i.e.,
the Rating Category designated by a numerically higher Roman numeral) is
one Rating Category lower than the higher of such Ratings, then the Rating
Category of the higher of such Ratings shall be applicable for such day,
(ii) if on any day the Ratings of the Rating Agencies do not fall in the
same Rating Category, and the lower of such Ratings is more than one
Rating Category lower than the higher of such Ratings, then the Rating
Category next higher from that of the lower of such Ratings shall be
applicable for such day, (iii) if on any day the Rating of only one of the
Rating Agencies is available, then the Rating Category of such Rating
shall be applicable for such day and (iv) if on any day a Rating is
available from neither of the Rating Agencies, then Rating V shall be
applicable for such day. Any change in the applicable Rating Category
resulting from a change in the Rating of a Rating Agency shall become
effective on the date such change is publicly announced by such Rating
Agency.
"Reference Lenders": Chase, Bank of America National Trust and
Savings Association, Barclays Bank PLC and ABN AMRO Bank N.V.
"Register": as defined in subsection 12.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
<PAGE> 23
18
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Requested Local Currency Loans": as defined in subsection
2.14(b).
"Requested Multicurrency Loans": as defined in subsection
2.14(a).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender to make Revolving Credit Loans to the Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule I under the
heading "Revolving Credit Commitment," as such amount may be reduced from
time to time in accordance with the provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment at
such time constitutes of the Aggregate Revolving Credit Commitments at
such time (or, if the Revolving Credit Commitments have terminated or
expired, the percentage which (a) the Aggregate Revolving Credit
Outstandings of such Lender at such time then constitutes of (b) the
Aggregate Revolving Credit Outstandings of all Lenders at such time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"Schneider Acquisition": the acquisition by the Borrower and its
Subsidiaries of the stock and assets related to the Schneider business
from Pfizer, Inc.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
<PAGE> 24
19
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Syndication Agents": as defined in the preamble hereto.
"Termination Date": with respect to a Lender, June 10, 2002, as
such date may be extended with respect to such Lender pursuant to
subsection 2.4.
"364-Day Facility": the Credit Agreement, dated as of the date
hereof, among the Borrower, the lenders parties thereto, The Chase
Manhattan Bank, as administrative agent, and others, providing for a
$600,000,000 revolving credit and competitive advance facility for a
364-day period.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day); Tranches
may be identified as "Eurodollar Tranches" or "Multicurrency Tranches".
"Transferee": as defined in subsection 12.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Utilization Fee Rate": .10% per annum.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
<PAGE> 25
20
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") in Dollars to the Borrower from time to time during
the Commitment Period so long as after giving effect thereto (i) the Available
Revolving Credit Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsection 2.14)
shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the Aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Prior to
11:00 A.M., New York City time, on the Borrowing Date requested by the Borrower,
each Lender will make an amount equal to its Funding Commitment Percentage of
the principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent for the account of the
Borrower at the New York office of the Administrative Agent specified in
subsection 12.2 in funds immediately available to the Administrative Agent.
Except as otherwise provided in subsection 2.14, such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of
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21
such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3 Facility Fee; Utilization Fee. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee for the
period from and including the Fee Commencement Date to the Termination Date,
computed at the Facility Fee Rate on the average daily amount of the Revolving
Credit Commitment of such Lender (regardless of usage) during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee for each Excess Utilization Day during
the period from and including the Fee Commencement Date to the Termination Date,
computed at the Utilization Fee Rate on the average daily amount of the
Aggregate Total Outstandings of such Lender for each Excess Utilization Day
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination Date
or such earlier date on which the Revolving Credit Commitments shall terminate
as provided herein, commencing on the first of such dates to occur after the
date hereof.
2.4 Termination or Reduction of Commitments; Extension of
Termination Date. (a) The Borrower shall have the right, upon not less than five
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments; provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, either (a) the Aggregate Available Revolving
Credit Commitments would not be greater than or equal to zero or (b) the
Available Revolving Credit Commitments of any Lender would not be greater than
or equal to zero. Any such reduction shall be in an amount equal to $5,000,000
or a whole multiple thereof and shall reduce permanently the Revolving Credit
Commitments then in effect. The Administrative Agent shall give each Lender
prompt notice of any notice received from the Borrower pursuant to this
subsection 2.4(a).
(b)(i) The Borrower may request, in a notice given as herein
provided to the Administrative Agent and each of the Lenders not earlier than
January 10, 1999 and not later than March 10, 1999, that the Termination Date
(the "Existing Termination Date") be extended. Such notice shall specify the
requested new Termination Date (the "Requested Termination Date"), which shall
be not more than 24 months after the Existing Termination Date. Each Lender,
acting in its sole discretion, shall, not later than a date 30 days after its
receipt of any such notice from the Borrower, notify the Borrower and the
Administrative Agent in writing of its election to extend or not to extend the
Termination Date with respect to its Revolving Credit Commitment. Any Lender
which shall not timely notify the Borrower and the Administrative Agent of its
election to extend the Termination Date shall be deemed to have elected not to
extend the Termination Date with respect to its Revolving Credit Commitment (any
Lender who timely notifies the Borrower and the Administrative Agent of
<PAGE> 27
22
an election not to extend its Revolving Credit Commitment and any Lender so
deemed to have elected not to extend its Revolving Credit Commitment being
referred to as a "Terminating Lender"). The election of any Lender to agree to a
requested extension shall not obligate any other Lender so to agree.
(ii) If and only if Lenders holding at least 50% of the
Aggregate Revolving Credit Commitments on the date of the notice delivered by
the Borrower pursuant to subparagraph (i) above (including Revolving Credit
Commitments of all Terminating Lenders on such date) shall have agreed during
the 30 day period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Revolving Credit Commitments of the Lenders other
than Terminating Lenders (the "Continuing Lenders") shall, subject to the other
provisions of this Agreement, be extended to the Requested Termination Date
specified in the notice from the Borrower, and as to such Lenders the term
"Termination Date", as used herein, shall on and after the date as of which the
requested extension is effective mean such Requested Termination Date, provided
that if such date is not a Business Day, then such Requested Termination Date
shall be the next preceding Business Day and (B) the Revolving Credit
Commitments of the Terminating Lenders shall continue until the Existing
Termination Date, and shall then terminate, and as to the Terminating Lenders,
the term "Termination Date", as used herein, shall continue to mean the Existing
Termination Date.
(c) In the event that the Termination Date shall have been extended
for the Continuing Lenders in accordance with paragraph (b) above and, in
connection with such extension, there are Terminating Lenders, the Borrower may,
at its own expense, require any Terminating Lender to transfer and assign in
whole or in part, without recourse (in accordance with subsection 12.6) all or
part of its interests, rights and obligations under this Agreement (other than
any CAF Advances owing to such Terminating Lender) to an assignee (which
assignee may be another Lender, if another Lender accepts such assignment) that
shall assume such assigned obligations and that shall agree that its Revolving
Credit Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (b); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent that such Loans are subject to such assignment, the
facility fees and utilization fees accrued on such Lender's Revolving Credit
Commitment under subsection 2.3 to the date of such payment and all other
amounts owed to it hereunder (including any amounts that would be payable to the
assigning Lender pursuant to subsection 3.11 if such assignment were, instead, a
prepayment of the Loans of such Lender). Any such assignee's Termination Date
shall be the Termination Date in effect at the time of such assignment for the
Continuing Lenders. The Borrower shall not have any right to require a Lender to
assign any part of its interests, rights and obligations under this Agreement
pursuant to this paragraph (c) unless it has notified such Lender of its
intention to require the assignment thereof at least ten days prior to the
proposed assignment date.
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23
2.5 Repayment of Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date applicable to such Lender (or such earlier
date on which the Revolving Credit Loans become due and payable pursuant to
Section 9). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Revolving Credit Loans from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 3.4.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. LIBO Rate CAF Advance
may be denominated in Dollars or any other available and freely-convertible
eurocurrency acceptable to the bidding Lender, and Fixed Rate CAF Advances shall
be denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Borrower shall
request CAF Advances by delivering a CAF Advance Request to the Administrative
Agent, not later than 12:00 Noon (New York City time) four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof (or, in the case of CAF
Advances to be denominated in a currency other than Dollars, and amount in such
currency the Dollar Equivalent of which is equal to $5,000,000 or $1,000,000, as
the case may be) and having not more than three alternative CAF Advance Maturity
Dates. The CAF Advance Maturity Date for each CAF Advance shall be the date set
forth therefor in the relevant CAF Advance Request, which date shall be (i) not
less than 7 days nor more than 360 days after the Borrowing Date therefor, in
the case of a Fixed Rate CAF Advance, (ii) not less than one month nor more than
twelve months after the Borrowing Date therefor, in the case of a LIBO CAF
Advance and (iii) not later than the Termination Date, in the case of any CAF
Advance. The Administrative Agent shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request received by the
Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable Eurocurrency Rate plus (or
minus) a margin determined by such Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
<PAGE> 29
24
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates which such Lender would be willing to make (which amounts
may, subject to subsection 2.6, exceed such Lender's Revolving Credit
Commitment); and
(ii) the margin above or below the applicable Eurocurrency Rate at
which such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Lender in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the Administrative Agent before
9:30 A.M. (New York City time) on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date, and the aggregate maximum amount for all CAF Advance Maturity Dates,
which such Lender would be willing to make (which amounts may, subject to
subsection 2.6, exceed such Lender's Revolving Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the Administrative
Agent telephone notice to that effect, or
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25
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 2.7(b) or subsection 2.7(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 2.7(b) or subsection 2.7(c), as the case may be.
(e) The Borrower's acceptance of CAF Advances in response to any CAF
Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for any
CAF Advance Maturity Date in an aggregate principal amount in excess of
the maximum principal amount requested in the related CAF Advance Request;
and
(iv) if the Borrower accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more Lenders
submit offers for any CAF Advance Maturity Date at identical pricing and
the Borrower accepts any of such offers but does not wish to (or, by
reason of the limitations set forth in subsection 2.6, cannot) borrow the
total amount offered by such Lenders with such identical pricing, the
Borrower shall accept offers from all of such Lenders in amounts allocated
among them pro rata according to the amounts offered by such Lenders (with
appropriate rounding, in the sole discretion of the Borrower, to assure
that each accepted CAF Advance is an integral multiple of $1,000,000 or,
in the case of CAF Advances to be denominated in a currency other than
Dollars, an amount in such currency the Dollar Equivalent of which is
approximately equal to $1,000,000); provided that if the number of Lenders
that submit offers for any CAF Advance Maturity Date at identical pricing
is such that, after the Borrower accepts such offers pro rata in
accordance with the foregoing provisions of this paragraph, the CAF
Advance to be made by any such Lender would be less than $5,000,000 (or,
in the case of CAF Advances to be denominated in a currency other than
Dollars, an amount in such currency the Dollar Equivalent of which is
approximately equal to $5,000,000) principal amount, the number of such
Lenders shall be reduced by the Administrative Agent by lot until the CAF
Advances to be made by each such remaining Lender would be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, in the case of CAF Advances to be denominated in a currency
other than Dollars, an
<PAGE> 31
26
amount in such currency the Dollar Equivalent of which is approximately
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof).
(f) If the Borrower notifies the Administrative Agent that a CAF
Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii) one or
more of the offers made by any Lender or Lenders, the Administrative Agent
promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request (in
the case of CAF Advances denominated in Dollars) and before the funding time for
the relevant currency from time to time specified by the Administrative Agent by
notice to the Lenders (in the case of CAF Advances denominated in any currency
other than Dollars), each Lender whose CAF Advance Offer has been accepted shall
make available to the Administrative Agent the amount of CAF Advances to be made
by such Lender, in immediately available funds, at the funding office for the
relevant currency specified from time to time by the Administrative Agent by
notice to the Lenders. The Administrative Agent will make such funds available
to the Borrower as soon as practicable on such date at such office of the
Administrative Agent. As soon as practicable after each Borrowing Date, the
Administrative Agent shall notify each Lender of the aggregate amount of CAF
Advances advanced on such Borrowing Date and the respective CAF Advance Maturity
Dates thereof.
2.8 Repayment of CAF Advances. The Borrower hereby unconditionally
promises to pay to the Administrative Agent, for the account of each Lender
which has made a CAF Advance, on the applicable CAF Advance Maturity Date the
then unpaid principal amount of such CAF Advance. The Borrower shall have the
right to prepay any principal amount of any CAF Advance only with the consent of
the Lender to which such CAF Advance is owed. The Borrower hereby further agrees
to pay interest on the unpaid principal amount of each CAF Advance from the
Borrowing Date to the applicable CAF Advance Maturity Date at the rate of
interest specified in the CAF Advance Offer accepted by the Borrower in
connection with such CAF Advance (calculated on the basis of a 360-day year for
actual days elapsed), payable on each applicable CAF Advance Interest Payment
Date.
2.9 Certain Restrictions with Respect to CAF Advances. A CAF Advance
Request may request offers for CAF Advances to be made on not more than one
Borrowing Date and to mature on not more than three CAF Advance Maturity Dates.
No CAF Advance Request may be submitted earlier than five Business Days after
submission of any other CAF Advance Request.
2.10 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to the
Borrower from time to time during the Commitment Period so long as after giving
effect thereto (a) the Available
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27
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans
does not exceed an amount the Dollar Equivalent of which is $100,000,000 and (c)
the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period, the Borrower may use
the Multicurrency Commitments by borrowing, repaying the Multicurrency Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Any Multicurrency Lender may cause its Multicurrency Loans to
be made by any branch, affiliate or international banking facility of such
Multicurrency Lender, provided, that such Multicurrency Lender shall remain
responsible for all of its obligations hereunder and no additional taxes, costs
or other burdens shall be imposed upon the Borrower or the Administrative Agent
as a result thereof.
2.11 Repayment of Multicurrency Loans;. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multicurrency Lender the then unpaid principal amount of each Multicurrency
Loan of such Multicurrency Lender on the Termination Date and on such other
date(s) and in such other amounts as may be required from time to time pursuant
to this Agreement. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Multicurrency Loans advanced to it and from time
to time outstanding until payment thereof in full at the rates per annum, and on
the dates, set forth in subsection 3.4.
2.12 Procedure for Multicurrency Borrowing. The Borrower may request
the Multicurrency Lenders to make Multicurrency Loans during the Commitment
Period on any Business Day by delivering a Notice of Multicurrency Loan
Borrowing. Each borrowing under the Multicurrency Commitments shall be in an
amount in an Available Foreign Currency the Dollar Equivalent of which is equal
to at least $1,000,000 (or, if the then Aggregate Available Multicurrency
Commitments are less than $1,000,000, such lesser amount). Upon receipt of any
such Notice of Multicurrency Borrowing from the Borrower, the Administrative
Agent shall promptly notify each Multicurrency Lender thereof. Not later than
the funding time for the relevant Available Foreign Currency specified from time
to time by the Administrative Agent by notice to the Borrower and the
Multicurrency Lenders each Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the funding office for the relevant Available Foreign
Currency specified from time to time by the Administrative Agent by notice to
the Borrower and the Multicurrency Lenders in the relevant Available Foreign
Currency and in immediately available funds. The amounts made available by each
Multicurrency Lender will then be made available to the Borrower at such funding
office and in like funds as received by the Administrative Agent.
2.13 Termination or Reduction of Multicurrency Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which shall give prompt notice thereof to each
Multicurrency Lender), to terminate the Multicurrency Commitments or, from time
to time, to reduce the amount of the Multicurrency Commitments; provided that no
such termination or reduction shall be permitted if, after giving effect thereto
and to any prepayments of the Loans made on the effective date thereof, the
Available Multicurrency Commitment of any Multicurrency Lender
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would be less than zero. Any such reduction shall be in an amount equal to
U.S. $1,000,000 or a whole multiple of U.S. $100,000 in excess thereof and
shall reduce permanently the Multicurrency Commitments then in effect.
2.14 Borrowings of Revolving Credit Loans and Refunding of Loans.
(a) If on any Borrowing Date on which the Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the aggregate principal amount of the Requested Multicurrency Loans
exceeds the Aggregate Available Multicurrency Commitments on such Borrowing Date
(before giving effect to the making and payment of any Loans required to be made
pursuant to this subsection 2.14 on such Borrowing Date) and, (ii) the Dollar
Equivalent of the amount of such excess is less than or equal to the aggregate
Available Revolving Credit Commitments of all Non-Multicurrency Lenders (before
giving effect to the making and payment of any Loans pursuant to this subsection
2.14 on such Borrowing Date), each Non-Multicurrency Lender shall make a
Revolving Credit Loan to the Borrower on such Borrowing Date, and the proceeds
of such Revolving Credit Loans shall be simultaneously applied to repay
outstanding Revolving Credit Loans, Local Currency Loans and/or Multicurrency
Loans of the Multicurrency Lenders (as directed by the Borrower) in each case in
amounts such that, after giving effect to (1) such borrowings and repayments and
(2) the borrowing from the Multicurrency Lenders of the Requested Multicurrency
Loans, the Committed Outstanding Percentage of each Lender will equal (as nearly
as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each Non-Multicurrency Lender to the Administrative Agent at its
New York office specified in subsection 12.2 in Dollars and in immediately
available funds and the Administrative Agent shall apply the proceeds of such
Revolving Credit Loans toward repayment of outstanding Revolving Credit Loans
and/or Local Currency Loans of the Multicurrency Lenders (as directed by the
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by the Borrower (but not in
any event greater than the Aggregate Available Multicurrency Commitments after
giving effect to the making of such repayment of any Loans on such Borrowing
Date) and (II) the Borrower shall pay to the Administrative Agent for the
account of the Lenders whose Loans to the Borrower are repaid on such Borrowing
Date pursuant to this subsection 2.14 all interest accrued on the amounts repaid
to the date of repayment, together with any amounts payable pursuant to
subsection 3.11 in connection with such repayment.
(b) Subject to the limitations on borrowings contained in a given
Local Currency Facility, if on any Borrowing Date on which a Foreign Subsidiary
Borrower has requested Local Currency Lenders to make Local Currency Loans (the
"Requested Local Currency Loans") under a Local Currency Facility to which such
Foreign Subsidiary Borrower and Local Currency Lenders are parties (i) the
aggregate principal amount of the Requested Local Currency Loans exceeds the
aggregate available amount of the commitments of such Local Currency Lenders
under such Local Currency Facility on such Borrowing Date (before giving effect
to the making and payment of any Revolving Credit Loans required to be made
pursuant to this subsection 2.14 on such Borrowing Date), (ii) after giving
effect to
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the Requested Local Currency Loans, the Dollar Equivalent of the aggregate
outstanding principal amount of Local Currency Loans of such Foreign Subsidiary
Borrower will be less than or equal to the aggregate commitments of such Local
Currency Lenders under such Local Currency Facility and (iii) the Dollar
Equivalent of the amount of the excess described in clause (i) above is less
than or equal to the Aggregate Available Revolving Credit Commitments of all
Lenders other than such Local Currency Lenders (before giving effect to the
making and payment of any Revolving Credit Loans pursuant to this subsection
2.14 on such Borrowing Date), each such other Lender shall make a Revolving
Credit Loan to the Borrower, on such Borrowing Date, and the proceeds of such
Revolving Credit Loans shall be simultaneously applied to repay outstanding
Revolving Credit Loans, Multicurrency Loans and/or Local Currency Loans of such
Local Currency Lenders (as directed by the Borrower) in each case in amounts
such that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from such Local Currency Lenders of the Requested Local Currency
Loans, the Committed Outstandings Percentage of each Lender will equal (as
nearly as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each such other Lender to the Administrative Agent at its New York
office specified in subsection 12.2 in Dollars and in immediately available
funds and the Administrative Agent shall apply the proceeds of such Revolving
Credit Loans toward the repayment of outstanding Revolving Credit Loans,
Multicurrency Loans and/or Local Currency Loans of such Local Currency Lenders
(as directed by the Borrower) and (y) concurrently with the repayment of such
Revolving Credit Loans on such Borrowing Date, (I) such Local Currency Lenders
shall, in accordance with the applicable provisions hereof, make the Requested
Local Currency Loans in an aggregate amount equal to the amount so requested by
such Foreign Subsidiary Borrower and (II) the relevant Foreign Subsidiary
Borrower shall pay to the Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.14 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 3.11 in
connection with such repayment.
(c) If any borrowing of Revolving Credit Loans is required pursuant
to this subsection 2.14, the Borrower shall notify the Administrative Agent in
the manner provided for Revolving Credit Loans in subsection 2.2, except that
the minimum borrowing amounts set forth in subsection 2.2 shall not be
applicable to the extent that such minimum borrowing amounts exceed the amounts
of Revolving Credit Loans required to be made pursuant to this subsection 2.14.
SECTION 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 Optional and Mandatory Prepayments. (a) The Borrower may at any
time and from time to time prepay the Revolving Credit Loans, in whole or in
part, without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days' irrevocable notice to
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the Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein.
(b) The Borrower may at any time and from time to time prepay, without
premium or penalty (other than any amounts payable pursuant to subsection 3.11
if such prepayment is of Multicurrency Loans and is made on a day other than the
last day of the Interest Period with respect thereto), the Multicurrency Loans,
in whole or in part, upon at least three Business Days' irrevocable notice to
the Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayments of Multicurrency Loans shall be in an aggregate principal amount the
Dollar Equivalent of which is at least $1,000,000 or an integral multiple of
$100,000 in excess thereof.
(c)(i) If, at any time during the Commitment Period, for any reason the
Aggregate Total Outstandings of all Lenders exceed the Aggregate Revolving
Credit Commitments then in effect, the Borrower shall, without notice or demand,
immediately prepay the Revolving Credit Loans and/or the Multicurrency Loans in
amounts such that the sum of (A) the aggregate principal amount of the Revolving
Credit Loans so prepaid and (B) the Dollar Equivalent of the aggregate principal
amount of the Multicurrency Loans so prepaid, equals or exceeds the amount of
such excess.
(ii) If, at any time during the Commitment Period, for any reason
either (x) the Aggregate Total Outstandings of all Multicurrency Lenders exceed
the Aggregate Revolving Credit Commitments of the Multicurrency Lenders or (y)
the Aggregate Multicurrency Outstandings exceed the aggregate Multicurrency
Commitments, the Borrower shall, without notice or demand, immediately prepay
the Revolving Credit Loans and/or the Multicurrency Loans in amounts such that
any such excess is eliminated.
(iii) Each prepayment of Loans pursuant to this subsection 3.1(c)
shall be accompanied by any amounts payable under subsection 3.11 in connection
with such prepayment.
(iv) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans or Multicurrency Loans that would otherwise be required
pursuant to this subsection 3.1(c) solely as a result of fluctuations in
Exchange Rates from time to time shall only be required to be made pursuant to
this subsection 3.1(c) on the last Business Day of each month on the basis of
the Exchange Rate in effect on such Business Day.
3.2 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the
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Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Loans shall specify
the length of the initial Interest Period therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Lenders have determined that such a
conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving a Notice of Multicurrency Loan Continuation, provided, that if
the Borrower shall fail to give such Notice of Multicurrency Loan Continuation
by the deadline specified therefor in Schedule II, such Multicurrency Loans
shall automatically be continued for an Interest Period of one month.
3.3 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Revolving Credit Loans and Multicurrency Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) the aggregate principal amount of the
Multicurrency Loans comprising each Multicurrency Tranche shall be in an amount
the Dollar Equivalent of which is at least $5,000,000. In no event shall there
be more than 7 Tranches outstanding at any time.
3.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurocurrency Rate determined for such Interest
Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
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(c) Each Multicurrency Loan shall bear interest for each day that it
is outstanding at a rate per annum equal to the Eurocurrency Rate plus the
Applicable Margin in effect for such day.
(d) Each CAF Advance shall bear interest at the rate determined in
accordance with subsection 2.7.
(e) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any facility fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, facility fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
facility fee or other amount is paid in full (as well after as before judgment).
(f) Interest pursuant to this subsection shall be payable in arrears
on each Interest Payment Date or CAF Advance Interest Payment Date, as the case
may be, provided that interest accruing pursuant to paragraph (e) of this
subsection shall be payable from time to time on demand.
3.5 Computation of Interest and Fees. (a) Whenever it is calculated
on the basis of the Prime Rate, interest shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed; and,
otherwise, interest and fees shall be calculated on the basis of a 360-day year
for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 3.4(a), (b) or (d).
(c) If any Reference Lender shall for any reason no longer have a
Commitment or any Loans, such Reference Lender shall thereupon cease to be a
Reference Lender, and if, as a result, there shall only be one Reference Lender
remaining, the Administrative Agent (after consultation with the Lenders and
with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the
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Borrower and the Lenders, designate another Lender as a Reference Lender so that
there shall at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest shall,
subject to the provisions of subsection 3.6, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender.
3.6 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Lenders or the Majority Multicurrency Lenders, as the case may
be, that the Eurocurrency Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, provided, that, notwithstanding the provisions of subsection 2.2 or
2.12, the Borrower may cancel the request for such Eurodollar Loan or
Multicurrency Loan, as the case may be, by written notice to the Administrative
Agent one Business Day prior to the first day of such Interest Period and the
Borrower shall not be subject to any liability pursuant to subsection 3.11 with
respect to such cancelled request, (x) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans, (y) any outstanding Eurodollar Loans shall be converted,
on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency
Loans to which such Interest Period relates shall be repaid on the first day of
such Interest Period. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans or Multicurrency Loans shall be made or
continued as such, nor shall the Borrower have the right to convert ABR Loans to
Eurodollar Loans.
3.7 Pro Rata Treatment and Payments. (a) Except as provided in
subsection 2.14, each payment (other than optional prepayments) of principal or
interest in respect of the Loans shall be made pro rata according to the amounts
then due and owing to the respective Lenders.
(b) Except as provided in subsection 2.14, each borrowing by the
Borrower of Revolving Credit Loans from the Lenders hereunder shall be made pro
rata according to the Funding Commitment Percentages of the Lenders in effect on
the date of such borrowing.
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Each payment by the Borrower on account of any facility fee hereunder and any
reduction of the Revolving Credit Commitments of the Lenders shall be allocated
by the Administrative Agent among the Lenders pro rata according to the
Revolving Credit Commitment Percentages of the Lenders. Except as provided in
subsection 2.14, each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then due and owing to the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder in respect of
amounts denominated in Dollars, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in subsection 12.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans or Multicurrency Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan or a Multicurrency
Loan becomes due and payable on a day other than a Business Day, the maturity of
such payment shall be extended to the next succeeding Business Day (and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension) unless the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(c) Each borrowing of Multicurrency Loans by the Borrower shall be
made, and any reduction of the Multicurrency Commitments shall be allocated by
the Administrative Agent, pro rata according to the Multicurrency Commitment
Percentages of the Multicurrency Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on
Multicurrency Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Multicurrency Loans then
due and owing by the Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by the Borrower on account of Multicurrency
Loans hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without set-off or counterclaim and shall be made at or before the
payment time for the currency of such Multicurrency Loan from time to time
specified by the Administrative Agent by notice to the Multicurrency Lenders and
the Borrower, on the due date thereof to the Administrative Agent, for the
account of the Multicurrency Lenders, at the payment office for the currency of
such Multicurrency Loan from time to time specified by the Administrative Agent
by notice to the Multicurrency Lenders and the Borrower, in the currency of such
Multicurrency Loan and in immediately available funds. The Administrative Agent
shall distribute such payments to the Multicurrency Lenders entitled to receive
the same promptly upon receipt in like funds as received.
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent
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may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to (i) the daily
average Federal Funds Effective Rate (in the case of a borrowing of Revolving
Credit Loans or CAF Advances denominated in Dollars) and (ii) the Administrative
Agent's reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Multicurrency Loans or CAF Advances denominated in a currency other
than Dollars), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon equal to (i) the rate per annum applicable to ABR Loans
hereunder (in the case of a borrowing of Revolving Credit Loans or CAF Advances
or CAF Advances denominated in Dollars) and (ii) the Administrative Agent's
reasonable estimate of its average daily cost of funds plus the Applicable
Margin applicable to Multicurrency Loans (in the case of a borrowing of
Multicurrency Loans or CAF Advances denominated in a currency other than
Dollars), on demand, from the Borrower.
3.8 Illegality. Notwithstanding any other provision herein, if after
the date hereof the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans or Multicurrency Loans as contemplated by
this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans or Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans
as such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled,
(b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law and (c) such Lender's Multicurrency Loans shall be
prepaid on the last day of the then current Interest Period with respect
thereto. If any such conversion of a Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 3.11.
3.9 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof (or, in the case of LIBO Rate CAF Advances, made subsequent to
acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan,
Multicurrency Loan or LIBO Rate CAF Advance made by it, or change the
basis of taxation of payments to
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such Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 3.10 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, Multicurrency Loans or LIBO Rate CAF
Advances or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable; provided, that the Borrower shall not be required to
pay to any Lender any amounts under this paragraph for any period prior to the
date on which such Lender gives notice to the Borrower that such amounts are
payable unless such Lender gives such notice within 180 days after it became
aware or should have become aware of the event giving rise to such payment
obligation.
(b) If any Lender shall have determined that after the date hereof
the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
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3.10 Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
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(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 12.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
3.11 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans, Multicurrency Loans or
CAF Advances after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans, Multicurrency Loans or CAF Advances or the
conversion of Eurodollar Loans to ABR Loans on a day which is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) or, in the case of CAF Advances, the
applicable CAF Advance Maturity Date (or proposed CAF Advance Maturity Date), in
each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin or any positive margin applicable to
CAF Advances included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Bank on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.12 Change of Lending Office; Removal of Lender. Each Lender agrees
that if it makes any demand for payment under subsection 3.9 or 3.10(a), or if
any adoption or change of the type described in subsection 3.8 shall occur with
respect to it, (i) it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would
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reduce or obviate the need for the Borrower to make payments under subsection
3.9 or 3.10(a), or would eliminate or reduce the effect of any adoption or
change described in subsection 3.8 or (ii) it will, upon at least five Business
Days' notice from the Borrower to such Lender and the Administrative Agent,
assign, pursuant to and in accordance with the provisions of subsection 12.6(c),
to one or more Assignees designated by the Borrower all, but not less than all,
of such Lender's rights and obligations hereunder (other than rights in respect
of such Lender's outstanding CAF Advance), without recourse to or warranty by,
or expense to, such Lender, for a purchase price equal to the outstanding
principal amount of each Revolving Credit Loan then owing to such Lender plus
any accrued but unpaid interest thereon and any accrued but unpaid facility fees
and utilization fees owing thereto and, in addition, all additional costs and
reimbursements, expense reimbursements and indemnities, if any, owing in respect
of such Lender's Commitment hereunder at such time (including any amount that
would be payable under subsection 3.11 if such assignment were, instead, a
prepayment in full of all amounts owing to such Lender) shall be paid to such
Lender.
3.13 Evidence of Debt. (a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) in the case of Revolving Credit Loans, the amount of each Revolving
Credit Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) in the case of Multicurrency Loans, the amount and currency of
each Multicurrency Loans and each Interest Period applicable thereto, (iii) in
the case of CAF Advances, the amount and currency of each CAF Advance made
hereunder, the CAF Advance Maturity Date thereof, the interest rate applicable
thereto and each CAF Advance Interest Payment Date applicable thereto, (iv) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (v) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 3.13(a) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A with appropriate insertions as to
date and principal amount (a "Revolving Credit Note").
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(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the CAF Advances of such Lender,
substantially in the form of Exhibit B with appropriate insertions (a "CAF
Advance Note").
SECTION 4. LOCAL CURRENCY FACILITIES
4.1 Terms of Local Currency Facilities. (a) Subject to the
provisions of this Section 4, the Borrower may in its discretion from time to
time designate any Subsidiary of the Borrower organized under the laws of any
jurisdiction outside the United States as a "Foreign Subsidiary Borrower" and
any Qualified Credit Facility to which such Foreign Subsidiary Borrower and any
one or more Lenders (or its Affiliates, agencies or branches) is a party as a
"Local Currency Facility", with the consent of each such Lender in its sole
discretion, by delivering a Local Currency Facility Addendum to the
Administrative Agent and the Lenders (through the Administrative Agent) executed
by the Borrower, each such Foreign Subsidiary Borrower and each such Lender,
provided, that on the effective date of such designation no Event of Default
shall have occurred and be continuing. Concurrently with the delivery of a Local
Currency Facility Addendum, the Borrower or the relevant Foreign Subsidiary
Borrower shall furnish to the Administrative Agent copies of all documentation
executed and delivered by such Foreign Subsidiary Borrower in connection
therewith, together with, if applicable, an English translation thereof. Except
as otherwise provided in this Section 4 or in the definition of "Qualified
Credit Facility" in subsection 1.1, the terms and conditions of each Local
Currency Facility shall be determined by mutual agreement of the relevant
Foreign Subsidiary Borrower(s) and Local Currency Lender(s). The documentation
governing each Local Currency Facility shall (i) contain an express
acknowledgement that such Local Currency Facility shall be subject to the
provisions of this Section 4, (ii) if more than one Lender is a party thereto,
designate a Local Currency Facility Agent for such Local Currency Facility and
(iii) include an opinion of counsel reasonably satisfactory to the
Administrative Agent from the jurisdiction in which such Local Currency Facility
is established that the documentation governing such Local Currency Facility is
enforceable in accordance with its terms. Each of the Borrower and, by agreeing
to any Local Currency Facility designation as contemplated hereby, each relevant
Local Currency Lender (if any) party thereto which is an Affiliate, branch or
agency of a Lender, acknowledges and agrees that each reference in this
Agreement to any Lender shall, to the extent applicable, be deemed to be a
reference to such Local Currency Lender. In the event of any inconsistency
between the terms of this Agreement and the terms of any Local Currency
Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Local Currency Facility shall
set forth (i) the maximum amount (expressed in Dollars) available to be borrowed
from all Local Currency Lenders under such Local Currency Facility (as the same
may be reduced from time to time, a "Local Currency Facility Maximum Borrowing
Amount") and (ii) with respect to each Local Currency Lender party to such Local
Currency Facility, the maximum amount (expressed in Dollars) available to be
borrowed from such Local Currency Lender thereunder (as the same may be reduced
from time to time, a "Local Currency Lender Maximum Borrowing Amount").
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(c) Except as otherwise required by applicable law, in no event
shall the Local Currency Lenders party to a Local Currency Facility have the
right to accelerate the Local Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Local Currency Loans prior to
the earlier of the stated termination date in respect thereof or the Termination
Date, except, in each case, in connection with an acceleration of the Loans or a
termination of the Commitments pursuant to Section 9 hereof, provided, that
nothing in this paragraph (c) shall be deemed to require any Local Currency
Lender to make a Local Currency Loan if the applicable conditions precedent to
the making of such Local Currency Loan set forth in the documentation governing
the relevant Local Currency Facility have not been satisfied. No Local Currency
Loan may be made under a Local Currency Facility if (i) after giving effect
thereto, the conditions precedent in subsection 6.2 hereof would not be
satisfied or (ii) after giving effect to the making of such Local Currency Loan
and the simultaneous application of the proceeds thereof, the Aggregate Total
Outstandings of all Lenders at any time exceeds the Aggregate Revolving Credit
Commitments.
(d) The relevant Foreign Subsidiary Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Local Currency Lenders
participating in any Local Currency Facility) to the terms of any Local Currency
Facility promptly after the effectiveness thereof (together with, if applicable,
an English translation thereof). If any such amendment, supplement or other
modification to a Local Currency Facility shall (i) add a Local Currency Lender
as a Local Currency Lender thereunder or (ii) change the Local Currency Facility
Maximum Borrowing Amount or any Local Currency Lender Maximum Borrowing Amount
with respect thereto, the Borrower shall promptly furnish an appropriately
revised Local Currency Facility Addendum, executed by the Borrower, the relevant
Foreign Subsidiary Borrower and the affected Local Currency Lenders (or any
agent acting on their behalf), to the Administrative Agent and the Lenders
(through the Administrative Agent).
(e) The Borrower may terminate its designation of a facility as a
Local Currency Facility, with the consent of each Local Currency Lender party
thereto in its sole discretion, by written notice to the Administrative Agent,
which notice shall be executed by the Borrower, the relevant Foreign Subsidiary
Borrower and each Local Currency Lender party to such Local Currency Facility
(or any agent acting on their behalf). Once notice of such termination is
received by the Administrative Agent, such Local Currency Facility and the loans
and other obligations outstanding thereunder shall immediately cease to be
subject to the terms of this Agreement.
4.2 Reporting of Local Currency Outstandings. (a) On the date of the
making of any Local Currency Loan having a maturity of 30 or more days to a
Foreign Subsidiary Borrower and on the last Business Day of each month on which
a Foreign Subsidiary Borrower has any outstanding Local Currency Loans, the
Local Currency Facility Agent for such Foreign Subsidiary Borrower, shall
deliver to the Administrative Agent a Notice of Local Currency Outstandings and
the Administrative Agent shall deliver a copy of such Notice of Local Currency
Outstandings to the Lenders. The Administrative Agent will, at the request of
any Local Currency Facility Agent, advise such Local Currency Facility Agent of
the Exchange Rate used by the Administrative Agent in calculating the Dollar
Equivalent of Local Currency Loans under the related Local Currency Facility on
any date.
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(b) For purposes of any calculation under this Agreement in which
the amount of the Aggregate Local Currency Outstandings of any Lender is a
component, the Administrative Agent shall make such calculation on the basis of
the Notices of Local Currency Outstanding received by it at least two Business
Days prior to the date of such calculation.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of operations and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at March 31, 1998 or, if later and prior to the Signing Date, the date of the
Borrower's most recent publicly available Form 10-Q and the related unaudited
consolidated statements of operations and of cash flows for the fiscal period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and materially correct
and present fairly (subject to normal year-end audit adjustments) the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal period then ended. All such
annual financial statements, including the related schedules and notes thereto,
were, as of the date prepared, prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
5.2 No Change. Since December 31, 1997 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
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5.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Borrower or any of its Subsidiaries in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement and each other Loan Document to which the Borrower is, or
is to become, a party has been or will be, duly executed and delivered on behalf
of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
5.6 No Material Litigation. Except as disclosed in the Borrower's
Form 10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the
date of the Borrower's most recent publicly available Form 10-Q, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
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5.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Intellectual Property. Except as disclosed in the Borrower's
Form 10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the
date of the Borrower's most recent publicly available Form 10-Q, the Borrower
and each of its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not reasonably be expected to have a Material Adverse
Effect (the "Intellectual Property"). Except as disclosed in the Borrower's Form
10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the date
of the Borrower's most recent publicly available Form 10-Q, no claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim, except for such claims that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998 or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
use of such Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
5.9 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
5.10 Federal Regulations. No part of the proceeds of any Loans will
be used in any manner which would violate Regulation U of the Board as now and
from time to time hereafter in effect.
5.11 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan other than a
Multiemployer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, where the liability which could be
reasonably expected to result could have a Material Adverse Effect; provided,
however, that with respect to any Multiemployer Plan, such representation is
made only to the knowledge of the Borrower. No termination of a Single
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45
Employer Plan pursuant to Section 4041(c) or 4042 of ERISA has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan and
to the knowledge of the Borrower, neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made which liability could be
reasonably expected to result could have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
5.12 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
5.13 Purpose of Loans. The proceeds of the Loans shall be used to
finance the working capital and general corporate needs of the Borrower and its
Subsidiaries, including to finance or refinance the Schneider Acquisition.
5.14 Environmental Matters. Except to the extent that the failure of
the following statements to be true and correct could not reasonably be expected
to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute or constituted a violation
of, or (ii) could reasonably be expected to give rise to liability under,
any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "Business") which could
reasonably be expected to materially interfere with the continued
operation of the Properties or materially impair the fair saleable value
thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
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(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any
of the Properties in violation of, or in a manner that could reasonably be
expected to give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under Environmental Laws.
5.15 Disclosure. The statements and information contained herein and
in any of the information provided to the Administrative Agent or the Lenders in
writing (other than financial projections) in connection with this Agreement,
taken as a whole, do not contain any untrue statement of any material fact, or
omit to state a fact necessary in order to make such statements or information
not misleading in any material respect, in each case in light of the
circumstances under which such statements were made or information provided as
of the date so provided. The financial projections contained in the July 1998
Confidential Information Memorandum, furnished to the Administrative Agent and
the Lenders in writing in connection with this Agreement have been prepared in
good faith based upon assumptions which were reasonable when such projections
were made, it being acknowledged that such projections are subject to the
uncertainty inherent in all projections of future results and that there can be
no assurance that the results set forth in such projections will in fact be
realized.
5.16 Year 2000 Matters. Except as disclosed in the Borrower's
filings with the Securities and Exchange Commission, the Borrower expects that
the cost of ensuring that its computer systems are Year 2000 compliant should
not have a Material Adverse Effect and that its year 2000 remediation will be
substantially completed prior to any anticipated material impact on its
operations.
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SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans. This Second Amended and Restated
Credit Agreement shall become effective upon, and the agreement of each Lender
to make the initial Loan requested to be made by it is subject to, the
satisfaction on the Closing Date of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender, and executed and delivered
by the Majority Lenders (as defined in and with respect to the Existing
Credit Agreement), including each Lender increasing any of its
Commitments.
(b) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit F,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(c) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date.
(d) Repayment of Existing Credit Facility. All amounts (including
principal, interest and fees) due under the Existing Credit Facility shall
have been paid in accordance with the terms of the Existing Credit
Facility.
(e) Legal Opinion. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of counsel
to the Borrower (which opinion may be delivered in part by in-house
counsel to the Borrower), covering the matters set forth in Exhibit G.
Such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(f) Approvals. All governmental and third party approvals necessary
in connection with the execution, delivery and performance of this
Agreement and the other Loan Documents shall have been obtained and be in
full force and effect.
(g) Financial Statements; Pro Forma Projected Consolidated
Capitalization. The Lenders shall have received (i) satisfactory audited
consolidated financial statements of the Borrower and its consolidated
Subsidiaries for the two most recent fiscal years ended prior to the
Closing Date as to which such financial statements are available, (ii)
satisfactory unaudited interim consolidated financial statements of the
Borrower and its consolidated Subsidiaries for each quarterly period ended
subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this
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paragraph as to which such financial statements are available and (iii) a
satisfactory pro forma projected consolidated capitalization of the
Borrower as anticipated at December 31, 1998, adjusted to give effect to
the Schneider Acquisition and the financing contemplated hereby.
(h) 364-Day Facility. The Closing Date under (and as defined in) the
364-Day Facility shall occur simultaneously with the Closing Date
hereunder.
6.2 Conditions to Each Loan. The agreement of each Lender to make
any Loan requested to be made by it on any date (including, without limitation,
its initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents
(other than, in the case of any Loan made after the Closing Date, the
representations and warranties in subsections 5.2 and 5.6) shall be true
and correct in all material respects on and as of such date as if made on
and as of such date and, in the case of any Loan made on the Closing Date,
after giving effect to the consummation of the Schneider Acquisition.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any
of them) remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of operations and
stockholders' equity and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year, reported
on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young LLP
or other independent certified public accountants of nationally recognized
standing; and
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(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of operations for such
quarter and the portion of the fiscal year through the end of such quarter
and of cash flows of the Borrower and its consolidated Subsidiaries for
the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein); provided, that it is hereby acknowledged that the
quarterly financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for complete
annual financial statements.
7.2 Certificates; Other Information. Furnish to the Administrative
Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge of
any Default or Event of Default that has occurred and is continuing except
as specified in such certificate, and including calculations demonstrating
compliance with subsection 8.1;
(b) within ten days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within five days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority, and promptly after the same are issued, copies of
all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as conducted by it on the Signing
Date and
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50
preserve, renew and keep in full force and effect its corporate existence and
(except as could not in the aggregate be reasonably expected to have a Material
Adverse Effect) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to subsection 8.3; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property necessary
in its business in good working order and condition except to the extent that
failure to do so could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are adequate for conducting its business; and furnish to
each Lender, upon written request, full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
7.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time involving the
Borrower or any of its Subsidiaries, which in either case, could
reasonably be expected to have a Material Adverse Effect; and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan, other than the
termination of any Single Employer Plan pursuant to Section 4041(b) of
ERISA where, in connection with any of the foregoing, the amount of
liability the Borrower or any Commonly Controlled Entity could reasonably
be expected to incur would be material.
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Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Consummation of Schneider Acquisition. Consummate, in accordance
with applicable law, except to the extent that the failure to comply with
applicable law could not be reasonably expected to have a Material Adverse
Effect on the Borrower and its Subsidiaries taken as a whole, the Schneider
Acquisition within 5 Business Days of the Closing Date.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any
of them) remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
8.1 Funded Debt Ratio. Permit the ratio of (i) Consolidated Funded
Debt to (ii) the sum of (A) Consolidated Net Worth and (B) Consolidated Funded
Debt, to be at any time greater than (x) .70 to 1.0, through the earlier date
referred to in clause (y) or (y) after the earlier of (1) the date which is six
months after the Closing Date and (2) the date of issuance by the Borrower of
Capital Stock for cash consideration in excess of $500,000,000, .60 to 1.0.
8.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
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(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule 8.2,
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby
is not increased;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
incurred to finance the acquisition of fixed or capital assets, provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by such
Indebtedness and (iii) the amount of Indebtedness secured thereby is not
increased;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof, provided that (i) such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such corporation after the time such corporation
becomes a Subsidiary, and (iii) the amount of Indebtedness secured thereby
is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
8.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Borrower (provided that the wholly owned
Subsidiary or Subsidiaries shall be the continuing or surviving
corporation);
(b) the Borrower or any wholly owned Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any other
wholly owned Subsidiary, and, so long as no Default or Event of Default
shall have occurred and be continuing or would occur as a result thereof,
the Borrower or any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any non-wholly owned Subsidiary of the
Borrower for fair market value;
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53
(c) any non-wholly owned Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any wholly owned Subsidiary
of the Borrower for fair market value or may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to any other non-wholly owned Subsidiary of the Borrower;
and
(d) the Borrower or any Subsidiary of the Borrower may be merged or
consolidated with or into another Person; provided that the Borrower or
such Subsidiary shall be the continuing or surviving corporation and no
Default or Event of Default shall have occurred and be continuing or would
occur as a result thereof (and, in the case of any such transaction
involving a Subsidiary, such Subsidiary shall continue to be a Subsidiary
or the Borrower shall have received fair market value therefor as
determined by the Board of Directors of the Borrower); and provided
further that the Borrower may not be merged or consolidated with or into
any Subsidiary.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement shall prove to have
been incorrect in any material respect on or as of the date made or deemed
made; or
(c) (i) The Borrower shall default in the observance or performance
of any covenant contained in subsection 7.8 or in Section 8; (ii) the
Borrower shall default in the observance or performance of any agreement
contained in Section 11; or (iii) the Borrower shall default in the
observance or performance of any other agreement contained in this
Agreement (other than as provided above in this Section), and such default
described in this clause (iii) shall continue unremedied for a period of
30 days; or
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation, beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in
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any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; provided,
however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or Guarantee
Obligations in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $100,000,000; or
(e) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its inability
to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall incur
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55
any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or in excess of the amount recoverable by insurance) of
$100,000,000 (net of any related tax benefit) or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended) (A) shall
have acquired beneficial ownership of 30% or more of any outstanding class
of Capital Stock having ordinary voting power in the election of directors
of the Borrower or (B) shall obtain the power (whether or not exercised)
to elect a majority of the Borrower's directors or (ii) the Board of
Directors of the Borrower shall not consist of a majority of Continuing
Directors; "Continuing Directors" shall mean the directors of the Borrower
on the Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER, THE BOOK
MANAGER AND THE SYNDICATION AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the
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other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of
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the Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent 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 appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
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
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or
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disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
10.10 The Arranger, the Book Manager and the Syndication Agents.
None of the Arranger, the Book Manager or the Syndication Agents shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Arranger, the Book Manager or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arranger,
the Book Manager or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
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SECTION 11. GUARANTEE
11.1 Guarantee. (a) The Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) No payment or payments made by the Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from the
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Borrower hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(c) The Borrower agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent and
such Lender in writing that such payment is made under this Section for such
purpose.
11.2 No Subrogation. Notwithstanding any payment or payments made by
the Borrower hereunder, or any set-off or application of funds of the Borrower
by the Administrative Agent or any Lender, the Borrower shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Lender
against the Foreign Subsidiary Borrowers or against any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Obligations, nor shall the Borrower seek or be entitled to
seek any contribution or reimbursement from the Foreign Subsidiary Borrowers in
respect of payments made by the Borrower hereunder, until all amounts owing to
the Administrative Agent and the Local Currency Lenders by the Foreign
Subsidiary Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Borrower on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the Borrower in trust
for the Administrative Agent and the Lenders, segregated from other funds of the
Borrower, and shall, forthwith upon receipt by the Borrower, be turned over to
the Administrative Agent in the exact form received by the Borrower (duly
indorsed by the Borrower to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
Administrative Agent may determine. The provisions of this paragraph shall
continue to be effective after the termination of this Agreement, the payment in
full of the Obligations and the termination of the Commitments.
11.3 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Borrower, and without notice to or
further assent by the Borrower, any demand for payment of any of the Obligations
made by the Administrative Agent or any
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Lender may be rescinded by the Administrative Agent or such Lender, and any of
the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and any Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, in accordance with the provisions thereof as the
Administrative Agent (or the requisite Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. None of the Administrative Agent or any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Agreement or any property subject
thereto. When making any demand hereunder against the Borrower, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Foreign Subsidiary Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from a Foreign Subsidiary Borrower or any
such other guarantor or any release of a Foreign Subsidiary Borrower or such
other guarantor shall not relieve the Borrower of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Administrative Agent or any Lender
against the Borrower. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.4 Guarantee Absolute and Unconditional. The Borrower waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Foreign Subsidiary Borrowers and the
Borrower, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Agreement. The Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Foreign Subsidiary Borrowers and the Borrower with respect to the Obligations.
This Section 11 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Foreign Subsidiary Borrowers against the
Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Foreign Subsidiary Borrowers or
the Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Foreign Subsidiary Borrowers for the
Obligations, or of the Borrower under this Section 11, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Borrower, the Administrative Agent and any Lender may, but shall be under no
obligation
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to, pursue such rights and remedies as it may have against the Foreign
Subsidiary Borrowers or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from the Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Foreign Subsidiary
Borrowers or any such other Person or of any such collateral security, guarantee
or right of offset, shall not relieve the Borrower of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agent or any Lender
against the Borrower. This Section 11 shall remain in full force and effect and
be binding in accordance with and to the extent of its terms upon the Borrower
and its successors and assigns, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the Borrower under this Agreement shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Foreign Subsidiary
Borrowers may be free from any Obligations.
11.5 Reinstatement. This Section 11 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
11.6 Payments. The Borrower hereby agrees that all payments required
to be made by it hereunder will be made to the Administrative Agent without
set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
11.7 "Lenders". For all purposes of this Section 11, the term
"Lenders" shall be deemed to include Local Currency Lenders.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. (a) Except as provided in paragraphs
(b) and (c) of this subsection 12.1, neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Majority Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of
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Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend the
scheduled date of maturity of any Loan, or reduce the stated rate or amount of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Multicurrency Commitment or Revolving Credit Commitment, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentages specified in
the definitions, of Majority Lenders or Majority Multicurrency Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release the
Borrower from the guarantee set forth in Section 11, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 10 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), (i) Schedule II may be amended to change administrative
information contained therein with the approval of the Majority Multicurrency
Lenders, upon execution and delivery by the Borrower and the Administrative
Agent of a written amendment providing for such amendment and (ii) additional
freely-convertible eurocurrencies may be added as Available Foreign Currencies,
upon execution and delivery by the Borrower, the Administrative Agent and the
Majority Multicurrency Lenders of an amendment providing for such addition.
(c) The Administrative Agent shall give prompt written notice to
each Lender of any amendment effected pursuant to subsection 12.1(b).
(d) Notwithstanding the provisions of this subsection 12.1, any
Local Currency Facility may be amended, supplemented or otherwise modified in
accordance with its terms so long as after giving effect thereto either (i) such
Local Currency Facility ceases to be an "Local Currency Facility" and the
Borrower so notifies the Administrative Agent or (ii) the Local Currency
Facility continues to meet the requirements of a Local Currency Facility set
forth herein.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case
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of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760
Attention: Lawrence C. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 508-650-8951
with a copy to:
General Counsel's Office
Fax: 508-650-8960
The Administrative Loan & Agency Services Group
Agent: One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Dawn Lee Lum
Fax: 212-270-3279
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7, 2.12, 2.13, or 3.2 shall
not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
12.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or
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statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, provided, that in connection with
any workout or restructuring, the Borrower shall pay the fees and disbursements
of (i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or
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other entities ("Participants") participating interests in any Loan owing to
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Loan
Document except for those specified in clauses (i) and (ii) of the proviso to
subsection 12.1(a). The Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
12.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 3.9, 3.10 and
3.11 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution, or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank, financial institution or other entity, the sum
of the aggregate principal amount of the Loans and the aggregate amount of the
unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of
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the unused Revolving Credit Commitment remaining with the assigning Lender shall
be not less than $15,000,000 (or such lesser amount as may be agreed to by the
Borrower and the Administrative Agent). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in 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 assigning Lender shall cease to be a party hereto). Each
assignment by a Lender of any portion of its Revolving Credit Commitment shall
be accompanied by assignment by such Lender to the same Assignee of the same
percentage of such Lender's Multicurrency Commitment.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
12.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 12.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to
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absolute assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
12.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans (or any
participation therein arising pursuant to subsection 12.16) then due and owing,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9(e), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans (or any participation therein arising
pursuant to subsection 12.16) then due and owing, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
12.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
12.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the
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subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Administrative Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
12.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 12.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
12.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between
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Administrative Agent and Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
12.14 European Economic and Monetary Union. (a) Definitions. In this
subsection 12.14 and in each other provision of this Agreement to which
reference is made in this subsection 12.14 expressly or impliedly, the following
terms have the meanings given to them in this subsection 12.14:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this Agreement
expected to be January 1, 1999) or the date on which circumstances arise
which (in the opinion of the Administrative Agent) have substantially the
same effect and result in substantially the same consequences as
commencement of the third stage of EMU as contemplated by the Treaty on
European Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part
the implementation of the third stage of EMU;
"euro" means the single currency of participating member states
of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other than a
euro unit) of a participating member state;
"participating member state" means each state so described in any
EMU legislation; and
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force
on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs (c) to
(j) below (inclusive) shall be effective at and from the commencement of the
third stage of EMU, provided, that if and to the extent that any such provision
relates to any state (or the currency of such state) that is not a participating
member state on the commencement of the
<PAGE> 75
70
third stage of EMU, such provision shall become effective in relation to such
state (and the currency of such state) at and from the date on which such state
becomes a participating member state.
(c) Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, provided, that if and to
the extent that any EMU legislation provides that following the commencement of
the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in the national currency unit, each
party to this Agreement shall be entitled to pay or repay any such amount either
in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member state
shall be made in the euro unit.
(e) Business Days. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in
(i) London and New York City and
(ii) Frankfurt am Main, Germany (or such principal financial center
or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this
purpose).
(f) Payments to the Administrative Agent. Subsections 2.11 and 3.7
shall be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
(g) Payments by the Administrative Agent to the Lenders. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Administrative Agent shall not be liable to the Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by
<PAGE> 76
71
this Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be, in a
national currency unit) to the account with the bank in the principal financial
center in the participating member state which the Borrower or, as the case may
be, any Lender shall have specified for such purpose. In this paragraph (h),
"all relevant steps" means all such steps as may be prescribed from time to time
by the regulations or operating procedures or such clearing or settlement system
as the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London Interbank Market or, as the case may be, the Paris
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) Rounding and Other Consequential Changes. Without prejudice and
in addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for indebtedness
of the Borrower to the Lenders and the Lenders to the Borrower under or pursuant
to this Agreement:
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid to or by
the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(ii) except as expressly provided in this subsection 12.14, each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the introduction of or changeover
to the euro in participating member states.
(k) Increased Costs. The Borrower shall from time to time, at the
request of the Administrative Agent, pay to the Administrative Agent for the
account of each Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction of, changeover to
or operation of the euro in any participating member state to the extent such
introduction, changeover or operation relates to such Lender's obligations
hereunder; provided that the Borrower shall not be required to pay to any Lender
any amounts under this paragraph for any period prior to the date on which such
Lender gives notice to the Borrower that such amounts are payable unless such
Lender gives notice within 180 days after it becomes aware or should have been
aware of the event giving rise to such payment obligation.
<PAGE> 77
72
12.15 Confidentiality. Each Lender agrees to keep confidential any
written or oral information (a) provided to it by or on behalf of the Borrower
or any of its Subsidiaries pursuant to or in connection with this Agreement or
(b) obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries; provided that nothing herein shall prevent
any Lender from disclosing any such information (i) to the Administrative Agent
or any other Lender, (ii) to any Transferee which receives such information
having been made aware of the confidential nature thereof and having agreed to
abide by the provisions of this subsection 12.15, (iii) to its employees,
directors, agents, attorneys, accountants and other professional advisors, and
to employees and officers of its Affiliates who agree to be bound by the
provisions of this subsection 12.15 and who have a need for such information in
connection with this Agreement or other transactions or proposed transactions
with the Borrower, (iv) upon the request or demand of any Governmental Authority
having jurisdiction over such Lender, (v) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
12.16 Loan Conversion/Participations. (a)(i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise, all
Loans (other than CAF Advances) outstanding in any currency other than Dollars
("Loans to be Converted") shall be converted into Revolving Credit Loans
denominated in Dollars (calculated on the basis of the relevant Exchange Rates
as of the Business Day immediately preceding the Conversion Date) ("Converted
Loans") and (ii) on the Conversion Date (with respect to Loans described in the
foregoing clause (i)) (A) each Lender severally, unconditionally and irrevocably
agrees that it shall purchase in Dollars a participating interest in such
Converted Loans in an amount equal to its Conversion Sharing Percentage of the
outstanding principal amount of the Converted Loans and (B) to the extent
necessary to cause the Committed Outstandings Percentage of each Lender to equal
its Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Commitments), each Lender
severally, unconditionally and irrevocably agrees that it shall purchase or sell
a participating interest in Revolving Credit Loans then outstanding. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each Lender
from which a participating interest is being purchased in the amount(s) provided
for in the preceding sentence. All Converted Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into Dollars in the manner contemplated by paragraph (a) of this
subsection 12.16, (i) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase a participating
interest in such Loans to be Converted, as the case may be, in an amount equal
to its Conversion Sharing Percentage of such Loans to be Converted, and (ii)
each Lender shall purchase or sell participating interests as provided in
paragraph (a)(ii)(B) of this subsection 12.16. Each Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
<PAGE> 78
73
(c) To the extent any Non-Excluded Taxes are required to be withheld
from any amounts payable by a Lender to another Lender in connection with its
participating interest in any Converted Loan, the Borrower shall be required to
pay increased amounts to the Lender receiving such payments to the same extent
they would be required under subsection 3.10 if the Borrower were making
payments directly to such Lender.
(d) Any time after the actions contemplated by paragraph (a) or (b)
of this subsection 12.16 have been taken, upon the notice of any Lender to the
Borrower the following shall occur: (i) the Borrower (through the guarantee
contained in Section 11) shall automatically be deemed to have assumed the Local
Currency Loans which are Converted Loans in which such Lender holds a
participation, and (ii) such Local Currency Loans shall be assigned by the
relevant Lender holding such Local Currency Loans or obligations to the Lender
who gave the notice requesting such assumption by the Borrower.
12.17 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, the Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to the Borrower such excess.
12.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE> 79
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________
Name:
Title:
CHASE SECURITIES INC.,
as Arranger and as Book Manager
By: _________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
<PAGE> 80
75
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
BARCLAYS BANK PLC,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By: _________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA
By: _________________________
Name:
Title:
BANCA MONTE DEL PASCHI DI SIENA S.P.A.
By: _________________________
Name:
Title:
<PAGE> 81
76
BANK OF IRELAND
By: _________________________
Name:
Title:
BANK OF NEW YORK
By: _________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI LIMITED
By: _________________________
Name:
Title:
BANKERS TRUST
By: _________________________
Name:
Title:
<PAGE> 82
77
BANQUE NATIONALE DE PARIS
By: _________________________
Name:
Title:
COMMERZBANK A.G.
By: _________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By: _________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
<PAGE> 83
78
THE FUJI BANK, LIMITED
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
NATIONSBANK, N.A.
By: _________________________
Name:
Title:
SVENSKA HANDELSBANKEN
By: _________________________
Name:
Title:
TORONTO DOMINION BANK
By: _________________________
Name:
Title:
<PAGE> 84
79
USB AG
By: _________________________
Name:
Title:
U.S. BANK, N.A.
By: _________________________
Name:
Title:
The following Lenders, who are parties to
the Existing Credit Agreement and whose
signature is not required to amend the
Existing Credit Agreement, remain parties to
this Agreement
BANK BOSTON, N.A.
CORESTATES BANK, N.A.
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
THE SANWA BANK, LIMITED
<PAGE> 85
SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
THE CHASE MANHATTAN BANK $ 96,363,636.44 $ 9,636,363.64
270 Park Avenue
New York, NY 10017
Attn: Dawn Lee Lum
Telecopy: (212) 270-3279
- --------------------------------------------------------------------------------------------------
ABN AMRO BANK N.V. 77,090,909.09 7,709,090.91
1 Post Office Square,
39th Floor
Boston, MA 02109
Attn: Brian Horgan
Telecopy: (617) 988-7910
- --------------------------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND 34,090,909.09 3,409,090.91
SAVINGS ASSOCIATION
335 Madison Avenue
New York, NY 10017
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BARCLAYS BANK PLC 34,090,909.09 3,409,090.91
222 Broadway
New York, NY 10038
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 86
2
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
ALLIED IRISH BANKS PLC 63,454,545.45 6,345,454.55
Bank Centre, Ballsbridge
Dublin 4
Ireland
Attn: Dermot J. Duffy
Telecopy: 353 1 6682508
- --------------------------------------------------------------------------------------------------
BANCA COMERCIALE ITALIANA 20,454,545.45 2,045,454.55
One William Street, 6th
Floor
New York, NY 10004
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BANCA MONTE DEL PASCHI 11,363,636.36 1,136,363.64
DI SIENA S.p.A.
55 East 59th Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BANK BOSTON, N.A. 60,000,000.00 6,000,000.00
100 Federal Street
Mail Stop #01-09-04
Boston, MA 02110
Attn: Gretchen Troiano
Telecopy: (617) 434-0637
- --------------------------------------------------------------------------------------------------
BANK OF IRELAND 11,363,636.36 1,136,363.64
Lower Baggot Street
Dublin 2
Ireland
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 87
3
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
BANK OF NEW YORK 11,363,636.36 1,136,363.64
One Wall Street
New York, NY 10286
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA 27,272,727.27 2,727,272.73
101 Federal Street
Boston, MA 02208
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI 63,454,545.45 6,345,454.55
1251 Avenue of the
Americas
New York, NY 10116-3138
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BANKERS TRUST 27,272,727.27 2,727,272.73
One Bankers Trust Plaza
New York, NY 10006
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
BANQUE NATIONALE DE PARIS 11,363,636.36 1,136,363.64
499 Park Avenue
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 88
4
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
COMMERZBANK A.G. 50,454,545.45 5,045,454.55
2 World Financial Center
New York, NY 10281
Attn: Robert Donohue
Telecopy: (212) 266-7595
- --------------------------------------------------------------------------------------------------
CORESTATES BANK, N.A. $ 43,000,000.00 4,300,000.00
1345 Chestnut Street
FCI-8-3-16
Philadelphia, PA 19107
Attn: John M. Fessick
Telecopy: (215) 973-6745
- --------------------------------------------------------------------------------------------------
THE DAI-ICHI KANGYO 70,272,727.27 7,027,272.73
BANK, LIMITED
One World Trade Center,
Suite 4911
New York, NY 10048
Attn: Thomas Fennessey
Telecopy: (212) 912-1879
- --------------------------------------------------------------------------------------------------
THE FIRST NATIONAL BANK 20,454,545.45 2,045,454.55
OF CHICAGO
One First National Plaza
Chicago, IL 60670
Attn: Latanya Driver
(re: Boston Scientific)
Telecopy: (312) 732-4840
- --------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK 27,272,727.27 2,727,272.73
One Federal Street
Boston, MA 02211
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 89
5
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
THE FUJI BANK, LIMITED 34,363,636.36 3,436,363.64
Two World Trade Center,
79th Floor
New York, NY 10048
Attn: Roy Tanfield
Telecopy: (212) 321-9407
- --------------------------------------------------------------------------------------------------
MELLON BANK, N.A. 47,363,636.36 4,736,363.64
One Boston Place, 6th
Floor
Boston, MA 02108
Attn: Rita Long
Telecopy: (617) 722-3516
- --------------------------------------------------------------------------------------------------
MORGAN GUARANTY TRUST 43,000,000.00 4,300,000.00
COMPANY OF NEW YORK
60 Wall Street
New York, NY 10260-0060
Attn: Jim Condon
Telecopy: (212) 648-5018
- --------------------------------------------------------------------------------------------------
NATIONSBANK, N.A. 27,272,727.27 2,727,272.73
100 N. Tryon Street
Charlotte, NC 28255
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
THE SANWA BANK, LIMITED 33,000,000.00 3,300,000.00
One Financial Center,
Suite 2812
Boston, MA 02111
Attn: Dale Edmunds
Telecopy: (617) 350-7212
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 90
6
<TABLE>
<CAPTION>
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
SVENSKA HANDELSBANKEN 11,363,636.36 1,136,363.64
153 East 53rd Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
TORONTO DOMINION BANK 11,363,636.36 1,136,363.64
31 West 52nd Street
New York, NY 10019-6101
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
U.S. BANK, N.A. 20,454,545.45 2,045,454.55
First Bank Place,
Minneapolis, MN
55402-4302
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
UBS AG 11,363,636.36 1,136,363.64
299 Park Avenue
New York, NY 10171
Attn:
Telecopy:
- --------------------------------------------------------------------------------------------------
TOTAL $1,000,000,000.00 $100,000,000.00
==================================================================================================
</TABLE>
<PAGE> 91
SCHEDULE II
I. MULTICURRENCY LOANS
A. Notice of Multicurrency Loan Borrowing
1. Deliver to: Chase Manhattan Investment Bank Limited
9 Thomas More Street
Trinity Tower
London E1 9YT
Attention: Steven Clarke
Telephone No: 011-44-171-777-2353
Fax No: 011-44-171-777-2360
with a copy to:
Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
Telephone No.: 212-552-7277
2. Time:
Not later than 11:00 a.m., London time, four Business Days
prior to such Borrowing Date.
3. Information Required:
Currency, Amount to be borrowed, and Interest Periods.
B. Notice of Multicurrency Loan Continuation; Notice of Prepayment
1. Deliver to: Chase Manhattan Investment Bank Limited
9 Thomas More Street
Trinity Tower
London E1 9YT
Attention: Steven Clarke
Telephone No: 011 44 171 777 2353
Fax No: 011 44 171 777 2360
with a copy to:
Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
Telephone No.: 212-552-7277
<PAGE> 92
2
2. Time:
Not later than 11:00 a.m., London time, four Business Days
prior to the date of such continuation or prepayment.
3. Information Required:
Amount to be continued or prepaid, as the case may be, and
Interest Periods.
II. NOTICE OF LOCAL CURRENCY OUTSTANDINGS
1. Deliver to: Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
Telephone No.: 212-552-7277
2. Delivery time:
By close of business in New York on the date of making of each
Local Currency Loan and on the last Business Day of each month
on which the applicable Foreign Subsidiary Borrower has
outstanding any Local Currency Loans.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount and currency of
outstanding Local Currency Loans.
<PAGE> 1
Exhibit 10.2
CREDIT AGREEMENT
among
BOSTON SCIENTIFIC CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
ABN AMRO BANK N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
BARCLAYS BANK PLC,
as Syndication Agent,
CHASE SECURITIES INC.,
as Arranger and as Book Manager,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 4, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS.............................................. 1
1.1 Defined Terms............................................. 1
1.2 Other Definitional Provisions............................. 14
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS........................... 14
2.1 Revolving Credit Commitments.............................. 14
2.2 Procedure for Revolving Credit Borrowing.................. 14
2.3 Facility Fee; Utilization Fee............................. 15
2.4 Termination or Reduction of Revolving Credit Commitments;
Extension of Termination Date.......................... 15
2.5 Repayment of Revolving Credit Loans....................... 17
2.6 CAF Advances.............................................. 17
2.7 Procedure for CAF Advance Borrowing....................... 17
2.8 Repayment of CAF Advances................................. 20
2.9 Certain Restrictions with Respect to CAF Advances......... 20
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS................ 20
3.1 Optional Prepayments...................................... 20
3.2 Conversion and Continuation Options....................... 21
3.3 Minimum Amounts and Maximum Number of Tranches............ 21
3.4 Interest Rates and Payment Dates.......................... 21
3.5 Computation of Interest and Fees.......................... 22
3.6 Inability to Determine Interest Rate...................... 23
3.7 Pro Rata Treatment and Payments........................... 23
3.8 Illegality................................................ 24
3.9 Requirements of Law....................................... 24
3.10 Taxes..................................................... 26
3.11 Indemnity................................................. 27
3.12 Change of Lending Office; Removal of Lender............... 28
3.13 Evidence of Debt.......................................... 28
SECTION 4. REPRESENTATIONS AND WARRANTIES............................ 29
4.1 Financial Condition....................................... 29
4.2 No Change................................................. 30
4.3 Corporate Existence; Compliance with Law.................. 30
4.4 Corporate Power; Authorization; Enforceable Obligations... 30
4.5 No Legal Bar.............................................. 30
4.6 No Material Litigation.................................... 30
4.7 No Default................................................ 31
</TABLE>
<PAGE> 3
Page
----
4.8 Intellectual Property.............................................31
4.9 Taxes.............................................................31
4.10 Federal Regulations...............................................31
4.11 ERISA.............................................................31
4.12 Investment Company Act; Other Regulations.........................32
4.13 Purpose of Loans..................................................32
4.14 Environmental Matters.............................................32
4.15 Disclosure........................................................33
4.16 Year 2000 Matters.................................................33
SECTION 5. CONDITIONS PRECEDENT..............................................34
5.1 Conditions to Initial Loans.......................................34
5.2 Conditions to Each Loan...........................................35
SECTION 6. AFFIRMATIVE COVENANTS.............................................35
6.1 Financial Statements..............................................35
6.2 Certificates; Other Information...................................36
6.3 Payment of Obligations............................................36
6.4 Conduct of Business and Maintenance of Existence..................36
6.5 Maintenance of Property; Insurance................................37
6.6 Inspection of Property; Books and Records; Discussions............37
6.7 Notices...........................................................37
6.8 Consummation of Schneider Acquisition.............................38
SECTION 7. NEGATIVE COVENANTS................................................38
7.1 Funded Debt Ratio.................................................38
7.2 Limitation on Liens...............................................38
7.3 Limitation on Fundamental Changes.................................39
SECTION 8. EVENTS OF DEFAULT.................................................40
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER............................42
9.1 Appointment.......................................................42
9.2 Delegation of Duties..............................................43
9.3 Exculpatory Provisions............................................43
9.4 Reliance by Administrative Agent..................................43
9.5 Notice of Default.................................................44
9.6 Non-Reliance on Administrative Agent and Other Lenders............44
9.7 Indemnification...................................................44
9.8 Administrative Agent in Its Individual Capacity...................45
9.9 Successor Administrative Agent....................................45
-ii-
<PAGE> 4
Page
----
9.10 The Arranger, the Book Manager and the Syndication Agents... 45
SECTION 10. MISCELLANEOUS............................................. 46
10.1 Amendments and Waivers...................................... 46
10.2 Notices..................................................... 46
10.3 No Waiver; Cumulative Remedies.............................. 47
10.4 Survival of Representations and Warranties.................. 47
10.5 Payment of Expenses and Taxes............................... 47
10.6 Successors and Assigns; Participations and Assignments...... 48
10.7 Adjustments; Set-off........................................ 50
10.8 Counterparts................................................ 51
10.9 Severability................................................ 51
10.10 Integration................................................. 51
10.11 GOVERNING LAW............................................... 51
10.12 Submission To Jurisdiction; Waivers......................... 52
10.13 Acknowledgements............................................ 52
10.14 Confidentiality............................................. 52
10.15 WAIVERS OF JURY TRIAL....................................... 53
-iii-
<PAGE> 5
SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule 7.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
-iv-
<PAGE> 6
CREDIT AGREEMENT, dated as of September 4, 1998, among (i)
BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the "Borrower"), (ii) the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), (iii) ABN AMRO BANK N.V., a Dutch banking
corporation, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association, and BARCLAYS BANK PLC, a banking corporation organized
under the laws of England, as Syndication Agents (each in such capacity, a
"Syndication Agent", and collectively, the "Syndication Agents"), (iv) CHASE
SECURITIES INC., as Arranger (in such capacity, the "Arranger") and as Book
Manager (in such capacity, the "Book Manager") and (v) THE CHASE MANHATTAN BANK,
a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make
available a 364-day credit facility as described herein; and
WHEREAS, the Lenders have agreed to make such credit facility
available upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 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%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "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 of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the
Federal Reserve Bank of
<PAGE> 7
2
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; and "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 which 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. Any change in the
ABR due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Revolving Credit Loans bearing interest based
upon the ABR.
"Administrative Agent": Chase, together with its Affiliates,
as the arranger of the Revolving Credit Commitments and as the agent
for the Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Aggregate Available Revolving Credit Commitments": the
aggregate amount of the Available Revolving Credit Commitments of all
of the Lenders.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, the aggregate unpaid
principal amount of such Lender's Revolving Credit Loans on such date.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount equal to the sum of
(a) the Aggregate Revolving Credit
<PAGE> 8
3
Outstandings of such Lender on such date and (b) the aggregate unpaid
principal amount of such Lender's CAF Advances on such date.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
Rating Eurodollar Loans ABR Loans
------ ---------------- ---------
Rating I .240% 0%
Rating II .270% 0%
Rating III .300% 0%
Rating IV .375% 0%
Rating V .575% 0%
"Assignee": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender, an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Revolving
Credit Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Book Manager": as defined in the preamble hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 or 2.7 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"Business": as defined in subsection 4.14.
"Business Day": (a) when such term is used to describe a day
on which a borrowing, payment or interest rate determination is to be
made in respect of a Eurodollar Loan or a LIBO Rate CAF Advance, such
day shall be a London Banking Day and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to complying
with any applicable requirements set forth in the foregoing clause (a),
is a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.
<PAGE> 9
4
"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days
prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Section 327.4 (or
any successor provision) to the FDIC (or any successor) for the FDIC's
(or such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by
<PAGE> 10
5
the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the first date, on or before December 31,
1998, on which the conditions precedent set forth in subsection 5.1
shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Revolving Credit Commitments shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Funded Debt": at any time, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Worth": at any time, all amounts which
would, in accordance with GAAP, be included under shareholders' equity
or classified as temporary equity, as prescribed by the Financial
Accounting Standards Board or Securities and Exchange Commission (e.g.
contingent stock repurchase obligations), on a consolidated balance
sheet of the Borrower and its Subsidiaries as at such time; provided,
that in computing Consolidated Net Worth, no deductions shall be made
with respect to charges for purchased research and development related
to the Schneider Acquisition.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes,
ordinances, codes, decrees, or other enforceable requirements or orders
of any Governmental Authority or other Requirements of Law regulating,
relating to or imposing liability or standards of
<PAGE> 11
6
conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan or CAF Advance, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in Dollars with a term comparable to such Interest
Period that appears on the applicable Telerate Page at approximately
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period; provided, however, that if at any time for any
reason such offered rate does not appear on a Telerate Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to such Loan or CAF Advance, the rate per
annum equal to the average (rounded upward to the nearest 1/16th of 1%)
of the respective rates notified to the Administrative Agent by each of
the Reference Lenders as the rate at which such Reference Lender is
offered deposits in Dollars at or about 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period in the
London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which (i) the sum of the
Aggregate Total Outstandings of all the Lenders hereunder, plus the
Aggregate Total Outstandings of all Lenders under (and as defined in)
the Medium Term Facility,
<PAGE> 12
7
exceeds (ii) 50% of the aggregate amount of the Revolving Credit
Commitments hereunder and the Revolving Credit Commitments under (and
as defined in) the Medium Term Facility (or, in each case, with respect
to any day after termination of such Revolving Credit Commitments, 50%
of the aggregate amount of such Revolving Credit Commitments in effect
on the date immediately prior to the date on which such Revolving
Credit Commitments terminated).
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
Facility
Rating Fee Rate
------ --------
Rating I .060%
Rating II .080%
Rating III .100%
Rating IV .125%
Rating V .175%
"Fee Commencement Date": the earlier of (i) October 5, 1998
and (ii) the Closing Date.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or minus) a
margin).
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 4.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other unrelated
<PAGE> 13
8
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and earn-outs and other similar
obligations in respect of acquisition and other similar agreements),
(b) any other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
<PAGE> 14
9
(i) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or
six months (or, if available to all Lenders, nine or twelve
months) thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
(or, if available to all Lenders, nine or twelve months)
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period in respect of any Loan made
by any Lender that would otherwise extend beyond the
Termination Date applicable to such Lender shall end on such
Termination Date; and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period
beginning on the Borrowing Date with respect thereto and ending on the
CAF Advance Maturity Date with respect thereto.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
<PAGE> 15
10
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan or CAF Advance.
"Loan Documents": this Agreement and any Notes.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders, the Revolving Credit
Commitment Percentages of which aggregate more than 50%; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder; provided that the acquisition related
charges and purchased research and development recorded or to be
recorded in respect of the Schneider Acquisition shall not be a
Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Medium Term Facility": the Credit Agreement, dated as of the
date hereof, among the Borrower, the lenders parties thereto, The Chase
Manhattan Bank, as administrative agent, and others, providing for a
$1,000,000,000 revolving credit, multicurrency and competitive advance
facility.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Notes": the collective reference to any Revolving Credit
Notes and any CAF Advance Notes.
"Participant": as defined in subsection 10.6(b).
<PAGE> 16
11
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 4.14.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV and Rating V.
"Rating I, Rating II, Rating III, Rating IV and Rating V": the
respective Ratings set forth below:
Rating
Category S&P Moody's
-------- --- -------
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
Rating IV lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating V lower than or equal lower than or equal
to BB+ to Ba1
<PAGE> 17
12
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, and the lower of such Ratings
(i.e., the Rating Category designated by a numerically higher Roman
numeral) is one Rating Category lower than the higher of such Ratings,
then the Rating Category of the higher of such Ratings shall be
applicable for such day, (ii) if on any day the Ratings of the Rating
Agencies do not fall in the same Rating Category, and the lower of such
Ratings is more than one Rating Category lower than the higher of such
Ratings, then the Rating Category next higher from that of the lower of
such Ratings shall be applicable for such day, (iii) if on any day the
Rating of only one of the Rating Agencies is available, then the Rating
Category of such Rating shall be applicable for such day and (iv) if on
any day a Rating is available from neither of the Rating Agencies, then
Rating V shall be applicable for such day. Any change in the applicable
Rating Category resulting from a change in the Rating of a Rating
Agency shall become effective on the date such change is publicly
announced by such Rating Agency.
"Reference Lenders": Chase, Bank of America National Trust and
Savings Association, Barclays Bank PLC and ABN AMRO Bank N.V.
"Register": as defined in subsection 10.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment," as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment at such time constitutes of the Aggregate Revolving Credit
Commitments at such time (or, if the
<PAGE> 18
13
Revolving Credit Commitments have terminated or expired, the percentage
which (a) the Aggregate Revolving Credit Outstandings of such Lender at
such time then constitutes of (b) the Aggregate Revolving Credit
Outstandings of all Lenders at such time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"Schneider Acquisition": the acquisition by the Borrower and
its Subsidiaries of the stock and assets related to the Schneider
business from Pfizer, Inc.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Syndication Agents": as defined in the preamble hereto.
"Termination Date": with respect to a Lender, the date which
is 364 days after the Fee Commencement Date, as such date may be
extended with respect to such Lender pursuant to subsection 2.4.
"Tranche": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "Eurodollar Tranches".
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Utilization Fee Rate": .10% per annum.
<PAGE> 19
14
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") in Dollars to the Borrower from time to time during
the Commitment Period so long as after giving effect thereto (i) the Available
Revolving Credit Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments shall be in an
<PAGE> 20
15
amount equal to (x) in the case of ABR Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the Aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Prior to 11:00 A.M., New York
City time, on the Borrowing Date requested by the Borrower, each Lender will
make an amount equal to its Revolving Credit Commitment Percentage of the
principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent for the account of the
Borrower at the New York office of the Administrative Agent specified in
subsection 10.2 in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3 Facility Fee; Utilization Fee. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee
for the period from and including the Fee Commencement Date to the Termination
Date, computed at the Facility Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender (regardless of usage) during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a utilization fee for each Excess Utilization Day
during the period from and including the Fee Commencement Date to the
Termination Date, computed at the Utilization Fee Rate on the average daily
amount of the Aggregate Total Outstandings of such Lender for each Excess
Utilization Day during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.4 Termination or Reduction of Revolving Credit Commitments;
Extension of Termination Date. (a) The Borrower shall have the right, upon not
less than five Business Days' notice to the Administrative Agent, to terminate
the Revolving Credit Commitments or, from time to time, to reduce the amount of
the Revolving Credit Commitments; provided that no such termination or reduction
shall be permitted if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, either (a) the Aggregate Available
Revolving Credit Commitments would not be greater than or equal to zero or (b)
the Available Revolving Credit Commitments of any Lender would not be greater
than or equal to zero. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
<PAGE> 21
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(b)(i) The Borrower may request, in a notice given as herein
provided to the Administrative Agent and each of the Lenders not more than 60
days, and not less than 30 days, prior to the Termination Date, that the
Termination Date (the "Existing Termination Date") be extended. Such notice
shall specify the requested new Termination Date (the "Requested Termination
Date"), which shall be not more than 364 days after the Existing Termination
Date. Each Lender, acting in its sole discretion, shall, not later than the
later of (i) the date which is 30 days prior to the Existing Termination Date
and (ii) the date which is 20 days after the receipt by the Lenders of any such
notice from the Borrower, notify the Borrower and the Administrative Agent in
writing of its election to extend or not to extend the Termination Date with
respect to its Revolving Credit Commitment. Any Lender which shall not timely
notify the Borrower and the Administrative Agent of its election to extend the
Termination Date shall be deemed to have elected not to extend the Termination
Date with respect to its Revolving Credit Commitment (any Lender who timely
notifies the Borrower and the Administrative Agent of an election not to extend
its Revolving Credit Commitment and any Lender so deemed to have elected not to
extend its Revolving Credit Commitment being referred to as a "Terminating
Lender"). The election of any Lender to agree to a requested extension shall not
obligate any other Lender so to agree.
(ii) If and only if Lenders holding at least 50% of the
Aggregate Revolving Credit Commitments on the date of the notice delivered by
the Borrower pursuant to subparagraph (i) above (including Revolving Credit
Commitments of all Terminating Lenders on such date) shall have agreed during
the period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Revolving Credit Commitments of the Lenders other
than Terminating Lenders (the "Continuing Lenders") shall, subject to the other
provisions of this Agreement, be extended to the Requested Termination Date
specified in the notice from the Borrower, and as to such Lenders the term
"Termination Date", as used herein, shall on and after the date as of which the
requested extension is effective mean such Requested Termination Date, provided
that if such date is not a Business Day, then such Requested Termination Date
shall be the next preceding Business Day and (B) the Revolving Credit
Commitments of the Terminating Lenders shall continue until the Existing
Termination Date, and shall then terminate, and as to the Terminating Lenders,
the term "Termination Date", as used herein, shall continue to mean the Existing
Termination Date.
(c) In the event that the Termination Date shall have been
extended for the Continuing Lenders in accordance with paragraph (b) above and,
in connection with such extension, there are Terminating Lenders, the Borrower
may, at its own expense, require any Terminating Lender to transfer and assign
in whole or in part, without recourse (in accordance with subsection 10.6) all
or part of its interests, rights and obligations under this Agreement (other
than any CAF Advances owing to such Terminating Lender) to an assignee (which
assignee may be another Lender, if another Lender accepts such assignment) that
shall assume such assigned obligations and that shall agree that its Revolving
Credit Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (b); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent
<PAGE> 22
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that such Loans are subject to such assignment, the facility fees and
utilization fees accrued on such Lender's Revolving Credit Commitment under
subsection 2.3 to the date of such payment and all other amounts owed to it
hereunder (including any amounts that would be payable to the assigning Lender
pursuant to subsection 3.11 if such assignment were, instead, a prepayment of
the Loans of such Lender). Any such assignee's Termination Date shall be the
Termination Date in effect at the time of such assignment for the Continuing
Lenders. The Borrower shall not have any right to require a Lender to assign any
part of its interests, rights and obligations under this Agreement pursuant to
this paragraph (c) unless it has notified such Lender of its intention to
require the assignment thereof at least ten days prior to the proposed
assignment date.
2.5 Repayment of Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date (or such earlier date on which the Revolving
Credit Loans become due and payable pursuant to Section 8). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Revolving
Credit Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in subsection
3.4.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. CAF Advance shall be
denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Borrower
shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) not less than one month nor more than
twelve months after the Borrowing Date therefor, in the case of a LIBO CAF
Advance and (iii) not later than the Termination Date, in the case of any CAF
Advance. The Administrative Agent shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request received by the
Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender
<PAGE> 23
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may elect, in its sole discretion, to offer irrevocably to make one or more CAF
Advances at the Eurodollar Rate plus (or minus) a margin determined by such
Lender in its sole discretion for each such CAF Advance. Any such irrevocable
offer shall be made by delivering a CAF Advance Offer to the Administrative
Agent, before 10:30 A.M. (New York City time) on the day that is three Business
Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Lender would be willing to make
(which amounts may, subject to subsection 2.6, exceed such Lender's
Revolving Credit Commitment); and
(ii) the margin above or below the Eurodollar Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.6, exceed such Lender's Revolving
Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to
make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF
<PAGE> 24
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Advance Request) and before 10:30 A.M. (New York City time) on the proposed
Borrowing Date (in the case of CAF Advances requested by a Fixed Rate CAF
Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made
by any Lender or Lenders pursuant to subsection 2.7(b) or subsection
2.7(c), as the case may be, and (B) reject any remaining offers made by
Lenders pursuant to subsection 2.7(b) or subsection 2.7(c), as the case
may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall
not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 2.6,
cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such
Lenders in amounts allocated among them pro rata according to the
amounts offered by such Lenders (with appropriate rounding, in the sole
discretion of the Borrower, to assure that each accepted CAF Advance is
an integral multiple of $1,000,000); provided that if the number of
Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions of this paragraph,
the CAF Advance to be made by any such Lender would be less than
$5,000,000 principal amount, the number of such Lenders shall be
reduced by the Administrative Agent by lot until the CAF Advances to be
made by
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each such remaining Lender would be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof.
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii)
one or more of the offers made by any Lender or Lenders, the Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the Administrative Agent the amount of CAF Advances to be made by such Lender,
in immediately available funds, at the funding office specified from time to
time by the Administrative Agent by notice to the Lenders. The Administrative
Agent will make such funds available to the Borrower as soon as practicable on
such date at such office of the Administrative Agent. As soon as practicable
after each Borrowing Date, the Administrative Agent shall notify each Lender of
the aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
2.8 Repayment of CAF Advances. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date the then unpaid principal amount of such CAF Advance. The Borrower shall
have the right to prepay any principal amount of any CAF Advance only with the
consent of the Lender to which such CAF Advance is owed. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of each CAF
Advance from the Borrowing Date to the applicable CAF Advance Maturity Date at
the rate of interest specified in the CAF Advance Offer accepted by the Borrower
in connection with such CAF Advance (calculated on the basis of a 360-day year
for actual days elapsed), payable on each applicable CAF Advance Interest
Payment Date.
2.9 Certain Restrictions with Respect to CAF Advances. A CAF
Advance Request may request offers for CAF Advances to be made on not more than
one Borrowing Date and to mature on not more than three CAF Advance Maturity
Dates. No CAF Advance Request may be submitted earlier than five Business Days
after submission of any other CAF Advance Request.
SECTION 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Revolving Credit Loans, in whole or in part,
without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with
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respect thereto), upon at least four Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein.
3.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
3.3 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Revolving Credit Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. In no event shall there be more than 7 Tranches outstanding at any
time.
3.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
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(c) Each CAF Advance shall bear interest at the rate
determined in accordance with subsection 2.7.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any facility fee or utilization fee or (iv)
any other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the principal of the Loans and
any such overdue interest, commitment fee or other amount shall bear interest at
a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, facility
fee, utilization fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, facility fee or other amount is paid in full
(as well after as before judgment).
(e) Interest pursuant to this subsection shall be payable in
arrears on each Interest Payment Date or CAF Advance Interest Payment Date, as
the case may be, provided that interest accruing pursuant to paragraph (d) of
this subsection shall be payable from time to time on demand.
3.5 Computation of Interest and Fees. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
3.4(a) or (c).
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease to
be a Reference Lender, and if, as a result, there shall only be one Reference
Lender remaining, the Administrative Agent (after consultation with the Lenders
and with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the Borrower and the Lenders, designate another
Lender as a Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders
<PAGE> 28
23
shall be unable or shall otherwise fail to supply such rates to the
Administrative Agent upon its request, the rate of interest shall, subject to
the provisions of subsection 3.6, be determined on the basis of the quotations
of the remaining Reference Lenders or Reference Lender.
3.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, provided, that, notwithstanding the
provisions of subsection 2.2, the Borrower may cancel the request for such
Eurodollar Loan, by written notice to the Administrative Agent one Business Day
prior to the first day of such Interest Period and the Borrower shall not be
subject to any liability pursuant to subsection 3.11 with respect to such
cancelled request, (x) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans
and (y) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
3.7 Pro Rata Treatment and Payments. (a) Each payment (other
than optional prepayments) of principal or interest in respect of the Loans
shall be made pro rata according to the amounts then due and owing to the
respective Lenders.
(b) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder shall be made pro rata according to the Revolving
Credit Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Revolving Credit Commitments of the Lenders shall be
allocated by the Administrative Agent among the Lenders pro rata according to
the Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then due
and owing to the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or
<PAGE> 29
24
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 10.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day (and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon equal to the rate per annum applicable
to ABR Loans hereunder, on demand, from the Borrower.
3.8 Illegality. Notwithstanding any other provision herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Lender hereunder to make Eurodollar Loans or continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 3.11.
3.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any
<PAGE> 30
25
Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof (or, in the case of LIBO Rate CAF Advances, made subsequent to
acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan or LIBO
Rate CAF Advance made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by subsection 3.10 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate, as the
case may be; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or LIBO Rate CAF Advances or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(b) If any Lender shall have determined that after the date
hereof the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
<PAGE> 31
26
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
3.10 Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
<PAGE> 32
27
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
3.11 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or CAF
Advances after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans or CAF Advances or the conversion of Eurodollar Loans to ABR Loans on a
day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) or, in the case of CAF Advances, the applicable CAF Advance Maturity
Date (or proposed CAF Advance Maturity Date), in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin or any positive margin applicable to CAF Advances included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Bank on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
<PAGE> 33
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3.12 Change of Lending Office; Removal of Lender. Each Lender
agrees that if it makes any demand for payment under subsection 3.9 or 3.10(a),
or if any adoption or change of the type described in subsection 3.8 shall occur
with respect to it, (i) it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under subsection 3.9 or 3.10(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 3.8 or (ii) it will, upon at least
five Business Days' notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions
of subsection 10.6(c), to one or more Assignees designated by the Borrower all,
but not less than all, of such Lender's rights and obligations hereunder (other
than rights in respect of such Lender's outstanding CAF Advance), without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender plus any accrued but unpaid interest thereon and any
accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Revolving Credit
Commitment hereunder at such time (including any amount that would be payable
under subsection 3.11 if such assignment were, instead, a prepayment in full of
all amounts owing to such Lender) shall be paid to such Lender.
3.13 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) in the case of Revolving Credit Loans, the amount of
each Revolving Credit Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) in the case of CAF Advances, the amount and
currency of each CAF Advance made hereunder, the CAF Advance Maturity Date
thereof, the interest rate applicable thereto and each CAF Advance Interest
Payment Date applicable thereto, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
<PAGE> 34
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(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "Revolving Credit Note").
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the CAF Advances of
such Lender, substantially in the form of Exhibit B with appropriate insertions
(a "CAF Advance Note").
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at March 31, 1998, or, if later and prior to the Signing Date, the date of the
Borrower's most recent publicly available Form 10-Q and the related unaudited
consolidated statements of income and of cash flows for the fiscal period ended
on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and materially correct
and present fairly (subject to normal year-end audit adjustments) the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal period then ended. All such
annual financial statements, including the related schedules and notes thereto,
were, as of the date prepared, prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including,
<PAGE> 35
30
without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto.
4.2 No Change. Since December 31, 1997 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Borrower or any of its Subsidiaries in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement and each other Loan Document to which the Borrower is, or
is to become, a party has been or will be, duly executed and delivered on behalf
of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
4.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, no
litigation, investigation or proceeding of or
<PAGE> 36
31
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Intellectual Property. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
Borrower and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which could not reasonably be expected to have a
Material Adverse Effect (the "Intellectual Property"). Except as disclosed in
the Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the
Signing Date, the date of the Borrower's most recent publicly available Form
10-Q, no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim, except for such claims that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the Borrower's Form 10-Q dated March 31, 1998, or, if
later and prior to the Signing Date, the date of the Borrower's most recent
publicly available Form 10-Q, the use of such Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.9 Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
4.10 Federal Regulations. No part of the proceeds of any Loans
will be used in any manner which would violate Regulation U of the Board as now
and from time to time hereafter in effect.
4.11 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has
<PAGE> 37
32
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan other than a
Multiemployer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, where the liability which could be
reasonably expected to result could have a Material Adverse Effect; provided,
however, that with respect to any Multiemployer Plan, such representation is
made only to the knowledge of the Borrower. No termination of a Single Employer
Plan pursuant to Section 4041(c) or 4042 of ERISA has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan and
to the knowledge of the Borrower, neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made which liability could be
reasonably expected to result could have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.12 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
4.13 Purpose of Loans. The proceeds of the Loans shall be used
to finance or refinance the working capital and general corporate needs of the
Borrower and its Subsidiaries, including to finance the Schneider Acquisition.
4.14 Environmental Matters. Except to the extent that the
failure of the following statements to be true and correct could not reasonably
be expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) could reasonably be expected to
give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business")
which could reasonably be expected to materially interfere with the
continued operation of the Properties or materially impair the fair
saleable value thereof.
<PAGE> 38
33
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected to give rise
to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could reasonably be expected to give rise to liability under
Environmental Laws.
4.15 Disclosure. The statements and information contained
herein and in any of the information provided to the Administrative Agent or the
Lenders in writing (other than financial projections) in connection with this
Agreement, taken as a whole, do not contain any untrue statement of any material
fact, or omit to state a fact necessary in order to make such statements or
information not misleading in any material respect, in each case in light of the
circumstances under which such statements were made or information provided as
of the date so provided. The financial projections contained in the July 1998
Confidential Information Memorandum furnished to the Administrative Agent and
the Lenders in writing in connection with this Agreement have been prepared in
good faith based upon assumptions which were reasonable when such projections
were made, it being acknowledged that such projections are subject to the
uncertainty inherent in all projections of future results and that there can be
no assurance that the results set forth in such projections will in fact be
realized.
4.16 Year 2000 Matters. Except as disclosed in the Borrower's
filings with the Securities and Exchange Commission, the Borrower expects that
the cost of ensuring that its computer systems are Year 2000 compliant should
not have a Material Adverse Effect and that its year 2000 remediation will be
substantially completed prior to any anticipated material impact on its
operations.
<PAGE> 39
34
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each Lender
to make the initial Loan requested to be made by it is subject to the
satisfaction on the Closing Date of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender.
(b) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
F, with appropriate insertions and attachments, satisfactory in form
and substance to the Administrative Agent, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date.
(d) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of counsel to the Borrower (which opinion may be delivered in
part by in-house counsel to the Borrower), covering the matters set
forth in Exhibit G. Such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(e) Approvals. All governmental and third party approvals
necessary in connection with the execution, delivery and performance of
this Agreement and the other Loan Documents shall have been obtained
and be in full force and effect.
(f) Financial Statements; Pro Forma Projected Consolidated
Capitalization. The Lenders shall have received (i) satisfactory
audited consolidated financial statements of the Borrower and its
consolidated Subsidiaries for the two most recent fiscal years ended
prior to the Closing Date as to which such financial statements are
available, (ii) satisfactory unaudited interim consolidated financial
statements of the Borrower and its consolidated Subsidiaries for each
quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available and (iii) a satisfactory
pro forma projected consolidated capitalization of the Borrower as
anticipated at December 31, 1998, adjusted to give effect to the
Schneider Acquisition and the financing contemplated hereby.
<PAGE> 40
35
(g) Medium Term Facility. The Closing Date under (and as
defined in) the Medium Term Facility shall occur simultaneously with
the Closing Date hereunder.
5.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents (other than, in the case of any Loan made after the
Closing Date, the representations and warranties in subsections 4.2 and
4.6) shall be true and correct in all material respects on and as of
such date as if made on and as of such date and, in the case of any
Loan made on the Closing Date, after giving effect to the consummation
of the Schneider Acquisition.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and stockholders' equity and of cash flows for
such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Ernst & Young LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries
<PAGE> 41
36
as at the end of such quarter and the related unaudited consolidated
statements of income for such quarter and the portion of the fiscal
year through the end of such quarter and of cash flows of the Borrower
and its consolidated Subsidiaries for the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein); provided, that it is hereby acknowledged that the
quarterly financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for complete
annual financial statements.
6.2 Certificates; Other Information. Furnish to the
Administrative Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge
of any Default or Event of Default that has occurred and is continuing
except as specified in such certificate, and including calculations
demonstrating compliance with subsection 7.1;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority, and promptly after the same are
issued, copies of all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as conducted by it on the Signing
Date and preserve, renew and keep in full force and effect its corporate
existence and (except as could not in the aggregate be reasonably expected to
have a Material Adverse Effect) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal
<PAGE> 42
37
conduct of its business except as otherwise permitted pursuant to subsection
7.3; comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property
necessary in its business in good working order and condition except to the
extent that failure to do so could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are adequate for conducting its business; and
furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
involving the Borrower or any of its Subsidiaries, which in either
case, could reasonably be expected to have a Material Adverse Effect;
and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan, other than the termination of any Single Employer Plan
pursuant to Section 4041(b) of ERISA where, in connection with any of
the foregoing, the amount of liability the Borrower or any Commonly
Controlled Entity could reasonably be expected to incur would be
material.
<PAGE> 43
38
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Consummation of Schneider Acquisition. Consummate, in
accordance with applicable law, except to the extent that the failure to comply
with applicable law could not be reasonably expected to have a Material Adverse
Effect on the Borrower and its Subsidiaries taken as a whole, the Schneider
Acquisition within 5 Business Days of the Closing Date.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments (or any of them) remain in effect or any amount is owing to
any Lender or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Funded Debt Ratio. Permit the ratio of (i) Consolidated
Funded Debt to (ii) the sum of (A) Consolidated Net Worth and (B) Consolidated
Funded Debt, to be at any time greater than (x) .70 to 1.0 through the earlier
date referred to in clause (y), or (y) after the earlier of (1) the date which
is six months after the Closing Date and (2) the date of issuance by the
Borrower of Capital Stock for cash consideration in excess of $500,000,000, .60
to 1.0.
7.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance
<PAGE> 44
39
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.2, provided that no such Lien is spread to cover any additional
property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, provided that (i) such
Liens existed at the time such corporation became a Subsidiary and were
not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such corporation after the time such
corporation becomes a Subsidiary, and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
7.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) the Borrower or any wholly owned Subsidiary of the
Borrower may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any other wholly owned Subsidiary, and, so long as no Default or
Event of Default shall have occurred and be continuing or would occur
as a result thereof, the Borrower or any Subsidiary of the Borrower may
<PAGE> 45
40
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any non-wholly owned
Subsidiary of the Borrower for fair market value;
(c) any non-wholly owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary of the Borrower for fair market value or may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other non-wholly owned
Subsidiary of the Borrower; and
(d) the Borrower or any Subsidiary of the Borrower may be
merged or consolidated with or into another Person; provided that the
Borrower or such Subsidiary shall be the continuing or surviving
corporation and no Default or Event of Default shall have occurred and
be continuing or would occur as a result thereof (and, in the case of
any such transaction involving a Subsidiary such Subsidiary shall
continue to be a Subsidiary or the Borrower shall have received fair
market value therefor as determined by the Board of Directors of the
Borrower); and provided further that the Borrower may not be merged or
consolidated with or into any Subsidiary.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) (i) The Borrower shall default in the observance or
performance of any covenant contained in subsection 6.8 or in Section
7; or (ii) the Borrower shall default in the observance or performance
of any other agreement contained in this Agreement (other than as
provided above in this Section), and such default described in this
clause (ii) shall continue unremedied for a period of 30 days; or
(d) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, beyond
the period of grace, if any, provided in the
<PAGE> 46
41
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; provided, however, that
no Default or Event of Default shall exist under this paragraph unless
the aggregate amount of Indebtedness and/or Guarantee Obligations in
respect of which any default or other event or condition referred to in
this paragraph shall have occurred shall be equal to at least
$100,000,000; or
(e) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its
inability to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
<PAGE> 47
42
appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or in excess of the amount recoverable by
insurance) of $100,000,000 (net of any related tax benefit) or more,
and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of 30% or more of any
outstanding class of Capital Stock having ordinary voting power in the
election of directors of the Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall not
consist of a majority of Continuing Directors; "Continuing Directors"
shall mean the directors of the Borrower on the Closing Date and each
other director, if such other director's nomination for election to the
Board of Directors of the Borrower is recommended by a majority of the
then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Revolving Credit Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan
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43
Documents, and each Lender irrevocably authorizes the Administrative Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The
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44
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent 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 appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
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
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in
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45
accordance with such percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Revolving Credit Commitments, this Agreement, any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 The Arranger, the Book Manager and the Syndication
Agents. None of the Arranger, the Book Manager or the Syndication Agents shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Arranger, the Book Manager or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arranger,
the Book Manager or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
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46
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate or amount of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment, in each case without the consent of each Lender
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentages specified in the definitions, of Majority
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 9 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
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47
The Borrower: Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760
Attention: Lawrence C. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 508-650-8951
with a copy to:
General Counsel's Office
Fax: 508-650-8960
The Administrative Loan & Agency Services Group
Agent: One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Dawn Lee Lum
Fax: 212-270-3279
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7 or 3.2 shall not be
effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses
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48
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Administrative Agent, provided, that in connection with any workout or
restructuring, the Borrower shall pay the fees and disbursements of (i) one
counsel for the Administrative Agent and the Lenders pursuant to this clause (b)
and (ii) one counsel to the Administrative Agent and the Lenders in the
jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause (b),
(c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
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49
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 10.1(a). The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 10.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 3.9, 3.10 and 3.11 with respect
to its participation in the Revolving Credit Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank, financial institution or other entity , the
sum of the aggregate principal amount of the Loans and the aggregate amount of
the unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of the unused Revolving
Credit Commitment remaining with the assigning Lender shall be not less than
$10,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment
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50
and Acceptance, have the rights and obligations of a Lender hereunder with
Revolving Credit Commitments as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in 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 assigning Lender
shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitments of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 10.14, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans then
due and owing, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by
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51
set-off, pursuant to events or proceedings of the nature referred to in Section
8(e), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans then due and owing, or interest thereon, such benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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52
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 Confidentiality. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a
<PAGE> 58
53
review of the books and records of the Borrower or any of its Subsidiaries;
provided that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Transferee which receives such information having been made aware of the
confidential nature thereof and having agreed to abide by the provisions of this
subsection 10.14, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, and to employees and officers of
its Affiliates who agree to be bound by the terms of this subsection 10.14 and
who have a need for such information in connection with this Agreement or other
transactions or proposed transactions with the Borrower, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Lender,
(v) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (vi) which has
been publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE> 59
54
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________
Name:
Title:
CHASE SECURITIES INC.,
as Arranger and as Book Manager
By: _________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
<PAGE> 60
55
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
BARCLAYS BANK PLC,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By: _________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA
By: _________________________
Name:
Title:
BANCA MONTE DEL PASCHI DI SIENA S.P.A.
By: _________________________
Name:
Title:
<PAGE> 61
56
BANK OF IRELAND
By: _________________________
Name:
Title:
BANK OF NEW YORK
By: _________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI LIMITED
By: _________________________
Name:
Title:
BANKERS TRUST
By: _________________________
Name:
Title:
<PAGE> 62
57
BANQUE NATIONALE DE PARIS
By: _________________________
Name:
Title:
COMMERZBANK A.G.
By: _________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By: _________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
<PAGE> 63
58
THE FUJI BANK, LIMITED
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
NATIONSBANK, N.A.
By: _________________________
Name:
Title:
SVENSKA HANDELSBANKEN
By: _________________________
Name:
Title:
TORONTO DOMINION BANK
By: _________________________
Name:
Title:
<PAGE> 64
59
UBS AG
By: _________________________
Name:
Title:
U.S. BANK, N.A.
By: _________________________
Name:
Title:
<PAGE> 65
SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
<TABLE>
<CAPTION>
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
<S> <C>
THE CHASE MANHATTAN BANK $43,636,363.64
270 Park Avenue
New York, NY 10017
Attn: Dawn Lee Lum
Telecopy: (212) 270-3279
- --------------------------------------------------------------------------------
ABN AMRO BANK N.V. 40,909,090.91
1 Post Office Square, 39th Floor
Boston, MA 02109
Attn: Brian Horgan
Telecopy: (617) 988-7910
- --------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION 40,909,090.91
335 Madison Avenue
New York, NY 10017
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BARCLAYS BANK PLC 40,909,090.91
222 Broadway
New York, NY 10038
Attn:
Telecopy:
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 66
2
<TABLE>
<CAPTION>
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
<S> <C>
ALLIED IRISH BANKS PLC 24,545,454.55
Bank Centre, Ballsbridge
Dublin 4
Ireland
Attn: Dermot J. Duffy
Telecopy: 353 1 6682508
- --------------------------------------------------------------------------------
BANCA COMERCIALE ITALIANA 24,545,454.55
One William Street, 6th Floor
New York, NY 10004
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANCA MONTE DEL PASCHI DI SIENA S.P.A. 13,636,363.64
55 East 59th Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF IRELAND 13,636,363.64
Lower Baggot Street
Dublin 2
Ireland
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF NEW YORK 13,636,363.64
One Wall Street
New York, NY 10286
Attn:
Telecopy:
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 67
3
<TABLE>
<CAPTION>
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
<S> <C>
THE BANK OF NOVA SCOTIA 32,727,272.73
101 Federal Street
Boston, MA 02208
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI 24,545,454.55
1251 Avenue of the Americas
New York, NY 10116-3138
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANKERS TRUST 32,727,272.73
One Bankers Trust Plaza
New York, NY 10006
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANQUE NATIONALE DE PARIS 13,636,363.64
499 Park Avenue
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
COMMERZBANK A.G. 24,545,454.55
2 World Financial Center
New York, NY 10281
Attn: Robert Donohue
Telecopy: (212) 266-7595
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 68
4
<TABLE>
<CAPTION>
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
<S> <C>
THE DAI-ICHI KANGYO BANK, LIMITED 32,727,272.73
One World Trade Center, Suite 4911
New York, NY 10048
Attn: Thomas Fennessey
Telecopy: (212) 912-1879
- --------------------------------------------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO 24,545,454.55
One First National Plaza
Chicago, IL 60670
Attn: Latanya Driver (re: Boston Scientific)
Telecopy: (312) 732-4840
- --------------------------------------------------------------------------------
FLEET NATIONAL BANK 32,727,272.73
One Federal Street
Boston, MA 02211
Attn:
Telecopy:
- --------------------------------------------------------------------------------
THE FUJI BANK, LIMITED 13,636,363.64
Two World Trade Center, 79th Floor
New York, NY 10048
Attn: Roy Tanfield
Telecopy: (212) 321-9407
- --------------------------------------------------------------------------------
MELLON BANK, N.A. 13,636,363.64
One Boston Place, 6th Floor
Boston, MA 02108
Attn: Rita Long
Telecopy: (617) 722-3516
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 69
5
<TABLE>
<CAPTION>
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
<S> <C>
NATIONSBANK, N.A. 32,727,272.73
100 N. Tryon Street
Charlotte, NC 28255
Attn:
Telecopy:
- --------------------------------------------------------------------------------
SVENSKA HANDELSBANKEN 13,636,363.64
153 East 53rd Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
TORONTO DOMINION BANK 13,636,363.64
31 West 52nd Street
New York, NY 10019-6101
Attn:
Telecopy:
- --------------------------------------------------------------------------------
UBS AG 13,636,363.64
299 Park Avenue
New York, NY 10171
Attn:
Telecopy:
- --------------------------------------------------------------------------------
U.S. BANK, N.A. 24,545,454.55
First Bank Place,
Minneapolis, MN 55402-4302
Attn:
Telecopy:
- --------------------------------------------------------------------------------
TOTAL $600,000,000
================================================================================
</TABLE>
<PAGE> 1
EXHIBIT 10.3
CREDIT AGREEMENT
AMONG
BOSTON SCIENTIFIC CORPORATION,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AND
MERRILL LYNCH CAPITAL CORPORATION,
AS ADMINISTRATIVE AGENT, LEAD ARRANGER AND SYNDICATION AGENT
DATED AS OF SEPTEMBER 9, 1998
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS
SECTION 1.1 Defined Terms ............................................................ 1
SECTION 1.2 Other Definitional Provisions ............................................ 14
ARTICLE II AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 Revolving Credit Commitments ............................................. 15
SECTION 2.2 Procedure for Revolving Credit Borrowing ................................. 15
SECTION 2.3 Facility Fee; Utilization Fee ............................................ 16
SECTION 2.4 Termination or Reduction of Revolving Credit Commitments; Extension of ......
SECTION 2.5 Repayment of Revolving Credit Loans ...................................... 18
SECTION 2.6 CAF Advances ............................................................. 18
SECTION 2.7 Procedure for CAF Advance Borrowing ...................................... 18
SECTION 2.8 Repayment of CAF Advances ................................................ 21
SECTION 2.9 Certain Restrictions with Respect to CAF Advances ........................ 21
ARTICLE III CERTAIN PROVISIONS APPLICABLE TO THE LOANS
SECTION 3.1 Prepayments .............................................................. 22
SECTION 3.2 Conversion and Continuation Options ...................................... 22
SECTION 3.3 Minimum Amounts and Maximum Number of Tranches ........................... 23
SECTION 3.4 Interest Rates and Payment Dates ......................................... 23
SECTION 3.5 Computation of Interest and Fees ......................................... 24
SECTION 3.6 Inability to Determine Interest Rate ..................................... 24
SECTION 3.7 Pro Rata Treatment and Payments .......................................... 25
SECTION 3.8 Illegality ............................................................... 26
SECTION 3.9 Requirements of Law ...................................................... 26
SECTION 3.10 Taxes .................................................................... 27
SECTION 3.11 Indemnity ................................................................ 29
SECTION 3.12 Change of Lending Office; Removal of Lender .............................. 29
SECTION 3.13 Evidence of Debt ......................................................... 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Financial Condition ...................................................... 31
SECTION 4.2 No Change ................................................................ 32
SECTION 4.3 Corporate Existence; Compliance with Law ................................. 32
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations .................. 32
SECTION 4.5 No Legal Bar ............................................................. 32
</TABLE>
<PAGE> 3
SECTION 4.6 No Material Litigation ...................................... 33
SECTION 4.7 No Default .................................................. 33
SECTION 4.8 Intellectual Property ....................................... 33
SECTION 4.9 Taxes ....................................................... 33
SECTION 4.10 Federal Regulations ......................................... 34
SECTION 4.11 ERISA........................................................ 34
SECTION 4.12 Investment Company Act; Other Regulations ................... 34
SECTION 4.13 Purpose of Loans ............................................ 34
SECTION 4.14 Environmental Matters ....................................... 34
SECTION 4.15 Disclosure .................................................. 35
SECTION 4.16 Year 2000 Matters ........................................... 36
ARTICLE V CONDITIONS PRECEDENT
SECTION 5.1 Conditions to Initial Loans ................................. 36
SECTION 5.2 Credit Agreement ............................................ 36
SECTION 5.3 Closing Certificate ......................................... 36
SECTION 5.4 Representations and Warranties .............................. 36
SECTION 5.5 Legal Opinion ............................................... 36
SECTION 5.6 Approvals ................................................... 37
SECTION 5.7 Financial Statements; Pro Forma Projected
Consolidated Capitalization ................................. 37
SECTION 5.8 Conditions to Each Loan ..................................... 37
SECTION 5.9 Representations and Warranties .............................. 37
SECTION 5.10 No Default .................................................. 37
ARTICLE VI AFFIRMATIVE COVENANTS
SECTION 6.1 Financial Statements ........................................ 38
SECTION 6.2 Certificates; Other Information ............................. 38
SECTION 6.3 Payment of Obligations ...................................... 39
SECTION 6.4 Conduct of Business and Maintenance of Existence ............ 39
SECTION 6.5 Maintenance of Property; Insurance .......................... 39
SECTION 6.6 Inspection of Property; Books and Records; Discussions ...... 39
SECTION 6.7 Notices ..................................................... 40
SECTION 6.8 Consummation of Schneider Acquisition ....................... 40
ARTICLE VII NEGATIVE COVENANTS
SECTION 7.1 Funded Debt Ratio ........................................... 41
SECTION 7.2 Limitation on Liens ......................................... 41
SECTION 7.3 Limitation on Fundamental Changes ........................... 42
ARTICLE VIII EVENTS OF DEFAULT
SECTION 8.1 Events of Default ........................................... 43
<PAGE> 4
ARTICLE IX THE ADMINISTRATIVE AGENT
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 9.1 Appointment................................................... 45
SECTION 9.2 Delegation of Duties.......................................... 46
SECTION 9.3 Exculpatory Provisions........................................ 46
SECTION 9.4 Reliance by Administrative Agent.............................. 46
SECTION 9.5 Notice of Default............................................. 47
SECTION 9.6 Non-Reliance on Administrative Agent and Other Lenders........ 47
SECTION 9.7 Indemnification............................................... 47
SECTION 9.8 Administrative Agent in Its Individual Capacity............... 48
SECTION 9.9 Successor Administrative Agent................................ 48
SECTION 9.10 Lead Arranger and Syndication Agent........................... 49
ARTICLE X MISCELLANEOUS
SECTION 10.1 Amendments and Waivers........................................ 49
SECTION 10.2 Notices....................................................... 49
SECTION 10.3 No Waiver; Cumulative Remedies................................ 50
SECTION 10.4 Survival of Representations and Warranties.................... 50
SECTION 10.5 Payment of Expenses and Taxes................................. 50
SECTION 10.6 Successors and Assigns; Participations and Assignments........ 51
SECTION 10.7 Adjustments; Set-off.......................................... 53
SECTION 10.8 Counterparts.................................................. 54
SECTION 10.9 Severability.................................................. 54
SECTION 10.10 Integration................................................... 54
SECTION 10.11 GOVERNING LAW................................................. 54
SECTION 10.12 Submission To Jurisdiction; Waivers........................... 55
SECTION 10.13 Acknowledgements.............................................. 55
SECTION 10.14 Confidentiality............................................... 56
SECTION 10.15 WAIVERS OF JURY TRIAL......................................... 56
</TABLE>
SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule 7.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
<PAGE> 5
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
<PAGE> 6
CREDIT AGREEMENT, dated as of September 9, 1998, among (i)
BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the "Borrower"), (ii) the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), and (iii) MERRILL LYNCH CAPITAL Corporation, a New
York banking corporation, as administrative agent for the Lenders hereunder (in
such capacity, the "Administrative Agent"), lead arranger (in such capacity, the
"Lead Arranger") and syndication agent for the Lenders hereunder (in such
capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make
available a 364-day credit facility as described herein; and
WHEREAS, the Lenders have agreed to make such credit facility
available upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 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%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Merrill Lynch Capital Corporation as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by Merrill Lynch Capital
Corporation in connection with extensions of credit to debtors); "Base
CD Rate" shall mean the sum of (a) the product of (i) the Three- Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "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 of Governors of the Federal Reserve
<PAGE> 7
2
System (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; and "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 which 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. Any change in the ABR due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Revolving Credit Loans bearing interest based
upon the ABR.
"Administrative Agent": Merrill Lynch Capital Corporation,
together with its Affiliates, as the agent for the Lenders under this
Agreement and the other Loan Documents, and any of its successors and
assigns.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Aggregate Available Revolving Credit Commitments": the
aggregate amount of the Available Revolving Credit Commitments of all
of the Lenders.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
<PAGE> 8
3
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, the aggregate unpaid
principal amount of such Lender's Revolving Credit Loans on such date.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such
date and (b) the aggregate unpaid principal amount of such Lender's CAF
Advances on such date.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
<TABLE>
<CAPTION>
Rating Eurodollar Loans ABR Loans
------ ---------------- ---------
<S> <C> <C> <C>
Rating I .240% 0%
Rating II .270% 0%
Rating III .300% 0%
Rating IV .375% 0%
Rating V .575% 0%
</TABLE>
"Assignee": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender, an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Revolving
Credit Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 or 2.7 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"Business": as defined in subsection 4.14.
<PAGE> 9
4
"Business Day": (a) when such term is used to describe a day
on which a borrowing, payment or interest rate determination is to be
made in respect of a Eurodollar Loan or a LIBO Rate CAF Advance, such
day shall be a London Banking Day and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to complying
with any applicable requirements set forth in the foregoing clause (a),
is a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.
"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days
prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
<PAGE> 10
5
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Section 327.4 (or
any successor provision) to the FDIC (or any successor) for the FDIC's
(or such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"Closing Date": the first date, on or before December 31,
1998, on which the conditions precedent set forth in subsection 5.1
shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Revolving Credit Commitments shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Funded Debt": at any time, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Worth": at any time, all amounts which
would, in accordance with GAAP, be included under shareholders' equity
or classified as temporary equity, as prescribed by the Financial
Accounting Standards Board or Securities and Exchange Commission (e.g.
contingent stock repurchase obligations), on a consolidated balance
sheet of the Borrower and its Subsidiaries as at such time; provided
that in computing
<PAGE> 11
6
Consolidated Net Worth, no deductions shall be made with respect to
charges for purchased research and development related to the Schneider
Acquisition.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes,
ordinances, codes, decrees, or other enforceable requirements or orders
of any Governmental Authority or other Requirements of Law regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan or CAF Advance, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in Dollars with a term comparable to such Interest
Period that appears on the applicable Telerate Page at approximately
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period; provided, however, that if at any time for any
reason such offered rate does not appear on a Telerate Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to such Loan or CAF Advance, the rate per
annum equal to the average (rounded upward to the nearest 1/16th of 1%)
of the respective rates notified to the Administrative Agent by each of
the Reference Lenders as
<PAGE> 12
7
the rate at which such Reference Lender is offered deposits in Dollars
at or about 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period in the London interbank market for
delivery on the first day of such Interest Period for the number of
days comprised therein.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurodollar Base Rate 1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which (i) the sum of the
Aggregate Total Outstandings of all the Lenders hereunder exceeds (ii)
50% of the aggregate amount of the Revolving Credit Commitments
hereunder (or, with respect to any day after termination of such
Revolving Credit Commitments, 50% of the aggregate amount of such
Revolving Credit Commitments in effect on the date immediately prior to
the date on which such Revolving Credit Commitments terminated).
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
<TABLE>
<CAPTION>
Facility
Rating Fee Rate
------ --------
<S> <C> <C>
Rating I .060%
Rating II .080%
Rating III .100%
Rating IV .125%
Rating V .175%
</TABLE>
"Fee Commencement Date": the earlier of (i) October 5, 1998
and (ii) the Closing Date.
"Financing Lease": any lease of property, real or personal,
the obligations of the
<PAGE> 13
8
lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or minus) a
margin).
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 4.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other unrelated third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for
<PAGE> 14
9
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and earn-outs and other similar
obligations in respect of acquisition and other similar agreements),
(b) any other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
initially, the period commencing on the Borrowing Date or conversion
date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months (or, if available to all Lenders,
nine or twelve months) thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months (or, if
available to all Lenders, nine or twelve months) thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; provided that, all
of the foregoing provisions relating to Interest Periods are subject to
the following:
if any Interest Period would otherwise end on a day
that is not a Business
<PAGE> 15
10
Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
any Interest Period in respect of any Loan made by
any Lender that would otherwise extend beyond the Termination
Date applicable to such Lender shall end on such Termination
Date; and
any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period
beginning on the Borrowing Date with respect thereto and ending on the
CAF Advance Maturity Date with respect thereto.
"Lead Arranger": as defined in the preamble hereto.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan or CAF Advance.
"Loan Documents": this Agreement and any Notes.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving
<PAGE> 16
11
Credit Commitments, Lenders, the Revolving Credit Commitment
Percentages of which aggregate more than 50%; and (b) at any time after
the termination of the Revolving Credit Commitments, Lenders whose
Aggregate Total Outstandings aggregate more than 50% of the Aggregate
Total Outstandings of all Lenders.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder; provided that the acquisition related
charges and purchased research and development recorded or to be
recorded in respect of the Schneider Acquisition shall not be a
Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Notes": the collective reference to any Revolving Credit
Notes and any CAF Advance Notes.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
<PAGE> 17
12
"Properties": as defined in subsection 4.14.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV and Rating V.
"Rating I, Rating II, Rating III, Rating IV and Rating V": the
respective Ratings set forth below:
<TABLE>
<CAPTION>
Rating
Category S&P Moody's
-------- -----------
<S> <C> <C>
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
Rating IV lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating V lower than or equal lower than or equal
to BB+ to Ba1
</TABLE>
provided that (i) if on any day the Ratings of the Rating Agencies do
not fall in the same Rating Category, and the lower of such Ratings
(i.e., the Rating Category designated by a numerically higher Roman
numeral) is one Rating Category lower than the higher of such Ratings,
then the Rating Category of the higher of such Ratings shall be
applicable for such day, (ii) if on any day the Ratings of the Rating
Agencies do not fall in the same Rating Category, and the lower of such
Ratings is more than one Rating Category lower
<PAGE> 18
13
than the higher of such Ratings, then the Rating Category next higher
from that of the lower of such Ratings shall be applicable for such
day, (iii) if on any day the Rating of only one of the Rating Agencies
is available, then the Rating Category of such Rating shall be
applicable for such day and (iv) if on any day a Rating is available
from neither of the Rating Agencies, then Rating V shall be applicable
for such day. Any change in the applicable Rating Category resulting
from a change in the Rating of a Rating Agency shall become effective
on the date such change is publicly announced by such Rating Agency.
"Reference Lenders": Merrill Lynch Capital Corporation and any
of its successors and assigns as such.
"Register": as defined in subsection 10.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment," as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment at such time constitutes of the Aggregate Revolving Credit
Commitments at such time (or, if the Revolving
<PAGE> 19
14
Credit Commitments have terminated or expired, the percentage which (a)
the Aggregate Revolving Credit Outstandings of such Lender at such time
then constitutes of (b) the Aggregate Revolving Credit Outstandings of
all Lenders at such time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"Schneider Acquisition": the acquisition by the Borrower and
its Subsidiaries of the stock and assets related to the Schneider
business from Pfizer, Inc.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": with respect to a Lender, the date which
is 364 days after the Fee Commencement Date, as such date may be
extended with respect to such Lender pursuant to subsection 2.4.
"Tranche": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "Eurodollar Tranches".
"Transferee": as defined in subsection 10.6(f).
<PAGE> 20
15
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Utilization Fee Rate": .10% per annum.
SECTION 1.2 Other Definitional Provisions. Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans ("Revolving Credit Loans") in Dollars to the Borrower from time to
time during the Commitment Period so long as after giving effect thereto (i) the
Available Revolving Credit Commitment of each Lender is greater than or equal to
zero, (ii) the Revolving Credit Loans of any Lender do not exceed such Lender's
Revolving Credit Commitment Percentage and (iii) the Aggregate Total
Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments. During the Commitment Period the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior
<PAGE> 21
16
to the Termination Date.
SECTION 2.2 Procedure for Revolving Credit Borrowing. The
Borrower may borrow under the Revolving Credit Commitments during the Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans or (b) on the
Business Day of the requested Borrowing Date, otherwise), in each case
specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the amount of such Type of Loan and the length of the initial
Interest Period therefor. Each borrowing under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the Aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Prior to
11:00 A.M., New York City time, on the Borrowing Date requested by the Borrower,
each Lender will make an amount equal to its Revolving Credit Commitment
Percentage of the principal amount of the Revolving Credit Loans requested to be
made on such Borrowing Date available to the Administrative Agent for the
account of the Borrower at the New York office of the Administrative Agent
specified in subsection 10.2 in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
SECTION 2.3 Facility Fee; Utilization Fee. (a) The Borrower
agrees to pay to the Administrative Agent for the account of each Lender a
facility fee for the period from and including the Fee Commencement Date to the
Termination Date, computed at the Facility Fee Rate on the average daily amount
of the Revolving Credit Commitment of such Lender (regardless of usage) during
the period for which payment is made, payable quarterly in arrears on the last
day of each March, June, September and December and on the Termination Date or
such earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a utilization fee for each Excess Utilization Day
during the period from and including the Fee Commencement Date to the
Termination Date, computed at the Utilization Fee Rate on the average daily
amount of the Aggregate Total Outstandings of such Lender for each
<PAGE> 22
17
Excess Utilization Day during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
SECTION 2.4 Termination or Reduction of Revolving Credit
Commitments; Extension of Termination Date. (a) The Borrower shall have the
right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate the Revolving Credit Commitments or, from time to time, to
reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective date thereof, either (i)
the Aggregate Available Revolving Credit Commitments would not be greater than
or equal to zero or (ii) the Available Revolving Credit Commitments of any
Lender would not be greater than or equal to zero. Any such reduction shall be
in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Revolving Credit Commitments then in effect. The Revolving
Credit Commitments shall be automatically and permanently reduced, on a pro rata
basis, on each date on which prepayment thereof is required to be made pursuant
to Section 3.1(b) in an amount equal to the amount of the net cash proceeds
referred to in such Section 3.1(b), provided that each such reduction of the
Revolving Credit Commitments shall be made ratably among the Lenders in
accordance with each Lenders' Revolving Credit Commitment Percentage.
(a) The Borrower may request, in a notice given as herein
provided to the Administrative Agent and each of the Lenders not more than 60
days, and not less than 30 days, prior to the Termination Date, that the
Termination Date (the "Existing Termination Date") be extended. Such notice
shall specify the requested new Termination Date (the "Requested Termination
Date"), which shall be not more than 364 days after the Existing Termination
Date. Each Lender, acting in its sole discretion, shall, not later than the
later of (i) the date which is 30 days prior to the Existing Termination Date
and (ii) the date which is 20 days after the receipt by the Lenders of any such
notice from the Borrower, notify the Borrower and the Administrative Agent in
writing of its election to extend or not to extend the Termination Date with
respect to its Revolving Credit Commitment. Any Lender which shall not timely
notify the Borrower and the Administrative Agent of its election to extend the
Termination Date shall be deemed to have elected not to extend the Termination
Date with respect to its Revolving Credit Commitment (any Lender who timely
notifies the Borrower and the Administrative Agent of an election not to extend
its Revolving Credit Commitment and any Lender so deemed to have elected not to
extend its Revolving Credit Commitment being referred to as a "Terminating
Lender"). The election of any Lender to agree to a requested extension shall not
obligate any other Lender so to agree.
(c) If and only if Lenders holding at least 50% of the
Aggregate Revolving
<PAGE> 23
18
Credit Commitments on the date of the notice delivered by the Borrower pursuant
to subparagraph (i) above (including Revolving Credit Commitments of all
Terminating Lenders on such date) shall have agreed during the period referred
to in such subparagraph (i) to extend the Existing Termination Date, then (A)
the Revolving Credit Commitments of the Lenders other than Terminating Lenders
(the "Continuing Lenders") shall, subject to the other provisions of this
Agreement, be extended to the Requested Termination Date specified in the notice
from the Borrower, and as to such Lenders the term "Termination Date", as used
herein, shall on and after the date as of which the requested extension is
effective mean such Requested Termination Date, provided that if such date is
not a Business Day, then such Requested Termination Date shall be the next
preceding Business Day and (B) the Revolving Credit Commitments of the
Terminating Lenders shall continue until the Existing Termination Date, and
shall then terminate, and as to the Terminating Lenders, the term "Termination
Date", as used herein, shall continue to mean the Existing Termination Date.
(d) In the event that the Termination Date shall have been
extended for the Continuing Lenders in accordance with paragraph (b) above and,
in connection with such extension, there are Terminating Lenders, the Borrower
may, at its own expense, require any Terminating Lender to transfer and assign
in whole or in part, without recourse (in accordance with subsection 10.6) all
or part of its interests, rights and obligations under this Agreement (other
than any CAF Advances owing to such Terminating Lender) to an assignee (which
assignee may be another Lender, if another Lender accepts such assignment) that
shall assume such assigned obligations and that shall agree that its Revolving
Credit Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (b); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent that such Loans are subject to such assignment, the
facility fees and utilization fees accrued on such Lender's Revolving Credit
Commitment under subsection 2.3 to the date of such payment and all other
amounts owed to it hereunder (including any amounts that would be payable to the
assigning Lender pursuant to subsection 3.11 if such assignment were, instead, a
prepayment of the Loans of such Lender). Any such assignee's Termination Date
shall be the Termination Date in effect at the time of such assignment for the
Continuing Lenders. The Borrower shall not have any right to require a Lender to
assign any part of its interests, rights and obligations under this Agreement
pursuant to this paragraph (c) unless it has notified such Lender of its
intention to require the assignment thereof at least ten days prior to the
proposed assignment date.
SECTION 2.5 Repayment of Revolving Credit Loans. The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Termination
<PAGE> 24
19
Date (or such earlier date on which the Revolving Credit Commitments of all
Lenders are terminated or the Revolving Credit Loans become due and payable
pursuant to Section 8). The Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Revolving Credit Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 3.4.
SECTION 2.6 CAF Advances. Subject to the terms and conditions
of this Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. CAF Advance shall be
denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
SECTION 2.7 Procedure for CAF Advance Borrowing. (a) The
Borrower shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) not less than one month nor more than
twelve months after the Borrowing Date therefor, in the case of a LIBO Rate CAF
Advance and (iii) not later than the Termination Date, in the case of any CAF
Advance. The Administrative Agent shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request received by the
Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at the Eurodollar Rate plus (or
minus) a margin determined by such Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity
<PAGE> 25
20
Date and the aggregate maximum amount of CAF Advances for all CAF
Advance Maturity Dates which such Lender would be willing to make
(which amounts may, subject to subsection 2.6, exceed such Lender's
Revolving Credit Commitment); and
(ii) the margin above or below the Eurodollar Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.6, exceed such Lender's Revolving
Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to
make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
<PAGE> 26
21
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect; or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made
by any Lender or Lenders pursuant to subsection 2.7(b) or subsection
2.7(c), as the case may be, and (B) reject any remaining offers made by
Lenders pursuant to subsection 2.7(b) or subsection 2.7(c), as the case
may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall
not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 2.6,
cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such
Lenders in amounts allocated among them pro rata according to the
amounts offered by such Lenders (with appropriate rounding, in the sole
discretion of the Borrower, to assure that each accepted CAF Advance is
an integral multiple of $1,000,000); provided that if the number of
Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions of this paragraph,
the CAF Advance to be made by any such Lender would be less than
$5,000,000 principal amount, the number of such Lenders shall be
reduced by the Administrative Agent by lot until the CAF Advances to be
made by each such remaining Lender would be in a
<PAGE> 27
22
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii)
one or more of the offers made by any Lender or Lenders, the Administrative
Agent promptly shall notify each Lender which has made such an offer of the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and the acceptance or rejection of any offers to make
such CAF Advances made by such Lender. Before 12:00 Noon (New York City time) on
the Borrowing Date specified in the applicable CAF Advance Request, each Lender
whose CAF Advance Offer has been accepted shall make available to the
Administrative Agent the amount of CAF Advances to be made by such Lender, in
immediately available funds, at the funding office specified from time to time
by the Administrative Agent by notice to the Lenders. The Administrative Agent
will make such funds available to the Borrower as soon as practicable on such
date at such office of the Administrative Agent. As soon as practicable after
each Borrowing Date, the Administrative Agent shall notify each Lender of the
aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
SECTION 2.8 Repayment of CAF Advances. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date the then unpaid principal amount of such CAF Advance. The Borrower shall
have the right to prepay any principal amount of any CAF Advance only with the
consent of the Lender to which such CAF Advance is owed. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of each CAF
Advance from the Borrowing Date to the applicable CAF Advance Maturity Date at
the rate of interest specified in the CAF Advance Offer accepted by the Borrower
in connection with such CAF Advance (calculated on the basis of a 360-day year
for actual days elapsed), payable on each applicable CAF Advance Interest
Payment Date.
SECTION 2.9 Certain Restrictions with Respect to CAF Advances.
A CAF Advance Request may request offers for CAF Advances to be made on not more
than one Borrowing Date and to mature on not more than three CAF Advance
Maturity Dates. No CAF Advance Request may be submitted earlier than five
Business Days after submission of any other CAF Advance Request.
ARTICLE III
CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
<PAGE> 28
23
SECTION 3.1 Prepayments. (a) Optional. The Borrower may at any
time and from time to time prepay the Revolving Credit Loans, in whole or in
part, without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days' irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein.
(b) Mandatory. The Borrower shall, on the date of receipt of
the net cash proceeds by the Borrower from (A) the incurrence or issuance by the
Borrower or any of its Subsidiaries of any convertible or debt securities (other
than (i) intercompany indebtedness, (ii) the issuance within 90 days of the
Closing Date of up to $300 million of debt securities; provided that (a) such
securities have a final maturity that is no later than one year from the Closing
Date, and (b) the issuance thereof is lead managed by Merrill Lynch Pierce,
Fenner & Smith, and (iii) up to $50 million of Indebtedness incurred after the
Closing Date to finance the Borrower's non-U.S. operations), (B) the sale or
issuance by the Borrower of any Capital Stock (other than any Capital Stock
issued (x) to the Borrower or any of its subsidiaries or (y) pursuant to the
Borrower's dividend reinvestment plan or stock option, restricted stock or other
employee benefit plans), prepay an aggregate principal amount of the Revolving
Credit Loans in an amount equal to the amount of such net cash proceeds received
therefrom.
SECTION 3.2 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election. The Borrower may elect from time to time to convert ABR
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the
<PAGE> 29
24
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that no Eurodollar Loan
may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date, and provided further that if
the Borrower shall fail to give such notice or if such continuation is not
permitted, such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period.
SECTION 3.3 Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Revolving Credit Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. In no event shall there be more than 7 Tranches
outstanding at any time.
SECTION 3.4 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) Each CAF Advance shall bear interest at the rate
determined in accordance with subsection 2.7.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any facility fee or utilization fee or (iv)
any other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the principal of the Loans and
any such overdue interest, commitment fee or other amount shall bear interest at
a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, facility
fee, utilization fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, facility fee or other amount is paid in full
(after as well as before judgment).
(e) Interest pursuant to this subsection shall be payable in
arrears on each Interest Payment Date or CAF Advance Interest Payment Date, as
the case may be, provided that
<PAGE> 30
25
interest accruing pursuant to paragraph (d) of this subsection shall be payable
from time to time on demand.
SECTION 3.5 Computation of Interest and Fees. (a) Whenever it
is calculated on the basis of the Prime Rate, interest shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
3.4(a) or (c).
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease to
be a Reference Lender, and if, as a result, there shall only be one Reference
Lender remaining, the Administrative Agent (after consultation with the Lenders
and with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the Borrower and the Lenders, designate another
Lender as a Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 3.6, be determined on
the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
SECTION 3.6 Inability to Determine Interest Rate. If prior to
the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period; or
<PAGE> 31
26
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, provided, that, notwithstanding the
provisions of subsection 2.2, the Borrower may cancel the request for such
Eurodollar Loan, by written notice to the Administrative Agent one Business Day
prior to the first day of such Interest Period and the Borrower shall not be
subject to any liability pursuant to subsection 3.11 with respect to such
cancelled request, (x) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans
and (y) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
SECTION 3.7 Pro Rata Treatment and Payments. (a) Each payment
(other than optional prepayments) of principal or interest in respect of the
Loans shall be made pro rata according to the amounts then due and owing to the
respective Lenders.
(b) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder shall be made pro rata according to the Revolving
Credit Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Revolving Credit Commitments of the Lenders shall be
allocated by the Administrative Agent among the Lenders pro rata according to
the Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then due
and owing to the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to
<PAGE> 32
27
the next succeeding Business Day (and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon equal to the rate per annum applicable
to ABR Loans hereunder, on demand, from the Borrower.
SECTION 3.8 Illegality. Notwithstanding any other provision
herein, if after the date hereof the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by
this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans or continue Eurodollar Loans as such and convert ABR Loans to Eurodollar
Loans shall forthwith be cancelled and (b) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to subsection
3.11.
SECTION 3.9 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof (or, in the case of LIBO Rate CAF Advances, made
subsequent to acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to
<PAGE> 33
28
this Agreement, any Note, any Eurodollar Loan or LIBO Rate CAF Advance
made by it, or change the basis of taxation of payments to such Lender
in respect thereof (except for Non-Excluded Taxes covered by subsection
3.10 and changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate, as the
case may be; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or LIBO Rate CAF Advances or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(b) If any Lender shall have determined that after the date
hereof the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant
<PAGE> 34
29
to this subsection, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this subsection
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. The agreements in
this subsection shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
SECTION 3.10 Taxes. (a) All payments made by the Borrower
under this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
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30
(i) deliver to the Borrower and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
SECTION 3.11 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans or
CAF Advances after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans or CAF Advances or the conversion of Eurodollar
Loans to ABR Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) or, in the case of CAF Advances, the applicable
<PAGE> 36
31
CAF Advance Maturity Date (or proposed CAF Advance Maturity Date), in each case
at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin or any positive margin applicable to
CAF Advances included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Bank on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
SECTION 3.12 Change of Lending Office; Removal of Lender. Each
Lender agrees that if it makes any demand for payment under subsection 3.9 or
3.10(a), or if any adoption or change of the type described in subsection 3.8
shall occur with respect to it, (i) it will use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions and so long as
such efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under subsection 3.9 or 3.10(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 3.8 or (ii) it will, upon at least
five Business Days' notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions
of subsection 10.6(c), to one or more Assignees designated by the Borrower all,
but not less than all, of such Lender's rights and obligations hereunder (other
than rights in respect of such Lender's outstanding CAF Advance), without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender plus any accrued but unpaid interest thereon and any
accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Revolving Credit
Commitment hereunder at such time (including any amount that would be payable
under subsection 3.11 if such assignment were, instead, a prepayment in full of
all amounts owing to such Lender) shall be paid to such Lender.
SECTION 3.13 Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) in the case of Revolving Credit Loans, the amount of
each Revolving Credit Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) in the case of CAF Advances, the amount and
currency of each CAF Advance made hereunder, the CAF Advance Maturity Date
thereof, the interest rate applicable thereto and each CAF Advance Interest
Payment Date
<PAGE> 37
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applicable thereto, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iv) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "Revolving Credit Note").
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the CAF Advances of
such Lender, substantially in the form of Exhibit B with appropriate insertions
(a "CAF Advance Note").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
SECTION 4.1 Financial Condition. The consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at December 31, 1997
and the related consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by Ernst & Young LLP, copies of
which have heretofore been furnished to each Lender, are complete and correct
and present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at March 31, 1998, or, if later and prior
<PAGE> 38
33
to the Signing Date, the date of the Borrower's most recent publicly available
Form 10-Q and the related unaudited consolidated statements of income and of
cash flows for the fiscal period ended on such date, certified by a Responsible
Officer, copies of which have heretofore been furnished to each Lender, are
complete and materially correct and present fairly (subject to normal year-end
audit adjustments) the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal period then ended.
All such annual financial statements, including the related schedules and notes
thereto, were, as of the date prepared, prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
SECTION 4.2 No Change. Since December 31, 1997 there has been
no development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 4.3 Corporate Existence; Compliance with Law. Each of
the Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has the corporate power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this
<PAGE> 39
34
Agreement and any Notes and to authorize the execution, delivery and performance
of the Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required with respect to the Borrower or any of
its Subsidiaries in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower is a party. This Agreement and each other Loan
Document to which the Borrower is, or is to become, a party has been or will be,
duly executed and delivered on behalf of the Borrower. This Agreement and each
other Loan Document to which the Borrower is, or is to become, a party
constitutes or will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 4.5 No Legal Bar. The execution, delivery and
performance of the Loan Documents, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower or of any of its Subsidiaries which could reasonably
be expected to have a Material Adverse Effect and will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation which could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.6 No Material Litigation. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
SECTION 4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.8 Intellectual Property. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
Borrower and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and
<PAGE> 40
35
processes necessary for the conduct of its business as currently conducted
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect (the "Intellectual Property"). Except
as disclosed in the Borrower's Form 10-Q dated March 31, 1998, or, if later and
prior to the Signing Date, the date of the Borrower's most recent publicly
available Form 10-Q, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim, except for such claims
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. Except as disclosed in the Borrower's Form 10-Q dated March 31,
1998, or, if later and prior to the Signing Date, the date of the Borrower's
most recent publicly available Form 10-Q, the use of such Intellectual Property
by the Borrower and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
SECTION 4.9 Taxes. Each of the Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
SECTION 4.10 Federal Regulations. No part of the proceeds of
any Loans will be used in any manner which would violate Regulation U of the
Board as now and from time to time hereafter in effect.
SECTION 4.11 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan other than a Multiemployer Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code, where the
liability which could be reasonably expected to result could have a Material
Adverse Effect; provided, however, that with respect to any Multiemployer Plan,
such representation is made only to the knowledge of the Borrower. No
termination of a Single Employer Plan pursuant to Section 4041(c) or 4042 of
ERISA has occurred, and no Lien in favor of the PBGC or a Plan has arisen,
during such five-year period. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made,
<PAGE> 41
36
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan and to the
knowledge of the Borrower, neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made which liability could be
reasonably expected to result could have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
SECTION 4.12 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or State
statute or regulation (other than Regulation X of the Board) which limits its
ability to incur Indebtedness.
SECTION 4.13 Purpose of Loans. The proceeds of the Loans shall
be used to finance or refinance the working capital and general corporate needs
of the Borrower and its Subsidiaries, including to finance the Schneider
Acquisition.
SECTION 4.14 Environmental Matters. (a) Except to the extent
that the failure of the following statements to be true and correct could not
reasonably be expected to have a Material Adverse Effect:
The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to
give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business") which could reasonably be expected to materially
interfere with the continued operation of the Properties or materially impair
the fair saleable value thereof.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the
<PAGE> 42
37
Properties or the Business, nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
SECTION 4.15 Disclosure. The statements and information
contained herein and in any of the information provided to the Administrative
Agent or the Lenders in writing (other than financial projections) in connection
with this Agreement, taken as a whole, do not contain any untrue statement of
any material fact, or omit to state a fact necessary in order to make such
statements or information not misleading in any material respect, in each case
in light of the circumstances under which such statements were made or
information provided as of the date so provided. The financial projections
contained in the July 1998 Confidential Information Memorandum furnished to the
Administrative Agent and the Lenders in writing in connection with this
Agreement have been prepared in good faith based upon assumptions which were
reasonable when such projections were made, it being acknowledged that such
projections are subject to the uncertainty inherent in all projections of future
results and that there can be no assurance that the results set forth in such
projections will in fact be realized.
SECTION 4.16 Year 2000 Matters. Except as disclosed in the
Borrower's filings with the Securities and Exchange Commission, the Borrower
expects that the cost of ensuring that its computer systems are Year 2000
compliant should not have a Material Adverse Effect and that its year 2000
remediation will be substantially completed prior to any anticipated material
impact on its operations.
<PAGE> 43
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ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions to Initial Loans. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction on the Closing Date of the following conditions precedent:
SECTION 5.2 Credit Agreement. The Administrative Agent shall
have received this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender.
SECTION 5.3 Closing Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit F, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of the Borrower.
SECTION 5.4 Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of the Closing Date.
SECTION 5.5 Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion of
counsel to the Borrower (which opinion may be delivered in part by in-house
counsel to the Borrower), covering the matters set forth in Exhibit G. Such
legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably
require.
SECTION 5.6 Approvals. All governmental and third party
approvals necessary in connection with the execution, delivery and performance
of this Agreement and the other Loan Documents shall have been obtained and be
in full force and effect.
SECTION 5.7 Financial Statements; Pro Forma Projected
Consolidated Capitalization. The Lenders shall have received (i) satisfactory
audited consolidated financial statements of the Borrower and its consolidated
Subsidiaries for the two most recent fiscal years ended prior to the Closing
Date as to which such financial statements are available, (ii) satisfactory
unaudited interim consolidated financial statements of the Borrower and its
consolidated Subsidiaries for each quarterly period ended subsequent to the date
of the latest financial statements delivered pursuant to clause (i) of this
paragraph as to which such financial
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39
statements are available and (iii) a satisfactory pro forma projected
consolidated capitalization of the Borrower as anticipated at December 31, 1998,
adjusted to give effect to the Schneider Acquisition and the financing
contemplated hereby.
SECTION 5.8 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any date (including,
without limitation, its initial Loan) is subject to the satisfaction of the
following conditions precedent:
SECTION 5.9 Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents (other than, in the case of any Loan made after the Closing Date, the
representations and warranties in subsections 4.2 and 4.6) shall be true and
correct in all material respects on and as of such date as if made on and as of
such date and, in the case of any Loan made on the Closing Date, after giving
effect to the consummation of the Schneider Acquisition.
SECTION 5.10 No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date thereof that the
conditions contained in this subsection have been satisfied.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
SECTION 6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and stockholders' equity and of cash flows for
such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out
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40
of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income for
such quarter and the portion of the fiscal year through the end of such
quarter and of cash flows of the Borrower and its consolidated
Subsidiaries for the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments);
(c) all such financial statements shall be complete and
correct in all material respects and shall be prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by
such accountants or officer, as the case may be, and disclosed
therein); provided, that it is hereby acknowledged that the quarterly
financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for
complete annual financial statements.
SECTION 6.2 Certificates; Other Information. Furnish to the
Administrative Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge
of any Default or Event of Default that has occurred and is continuing
except as specified in such certificate, and including calculations
demonstrating compliance with subsection 7.1;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority, and promptly after the same are
issued, copies of all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
SECTION 6.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or
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41
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
SECTION 6.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as conducted by it on
the Signing Date and preserve, renew and keep in full force and effect its
corporate existence and (except as could not in the aggregate be reasonably
expected to have a Material Adverse Effect) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
subsection 7.3; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property; Insurance. Keep all
property necessary in its business in good working order and condition except to
the extent that failure to do so could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are adequate for conducting its
business; and furnish to each Lender, upon written request, full information as
to the insurance carried.
SECTION 6.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and accounts in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants.
SECTION 6.7 Notices. (a) Promptly give notice to the
Administrative Agent and each Lender of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (B)
litigation, investigation or proceeding which may exist at any time
involving the Borrower or any of its Subsidiaries, which in either
case, could reasonably be expected to have a Material Adverse Effect;
and
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(iii) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (A) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (B) the institution of
proceedings or the taking of any other action by the PBGC or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Plan, other than the termination of any Single
Employer Plan pursuant to Section 4041(b) of ERISA where, in connection
with any of the foregoing, the amount of liability the Borrower or any
Commonly Controlled Entity could reasonably be expected to incur would
be material.
(b) Each notice pursuant to this subsection shall be
accompanied by a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower proposes to
take with respect thereto.
SECTION 6.8 Consummation of Schneider Acquisition. Consummate,
in accordance with applicable law, except to the extent that the failure to
comply with applicable law could not be reasonably expected to have a Material
Adverse Effect on the Borrower and its Subsidiaries taken as a whole, the
Schneider Acquisition within 5 Business Days of the Closing Date.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments (or any of them) remain in effect or any amount is owing to
any Lender or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
SECTION 7.1 Funded Debt Ratio. Permit the ratio of (i)
Consolidated Funded Debt to (ii) the sum of (A) Consolidated Net Worth and (B)
Consolidated Funded Debt, to be at any time greater than (x) .70 to 1.0 through
the earlier date referred to in clause (y), or (y) after the earlier of (1) the
date which is six months after the Closing Date and (2) the date of issuance by
the Borrower of Capital Stock for cash consideration in excess of $500,000,000,
.60 to 1.0.
SECTION 7.2 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired,
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except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.2, provided that no such Lien is spread to cover any additional
property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, provided that (i) such
Liens existed at the time such corporation became a Subsidiary and were
not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such corporation after the time such
corporation becomes a Subsidiary, and (iii) the amount of Indebtedness
secured
<PAGE> 49
44
thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
SECTION 7.3 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, except:
(b) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(c) the Borrower or any wholly owned Subsidiary of the
Borrower may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any other wholly owned Subsidiary, and, so long as no Default or
Event of Default shall have occurred and be continuing or would occur
as a result thereof, the Borrower or any Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any non-wholly owned
Subsidiary of the Borrower for fair market value;
(d) any non-wholly owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary of the Borrower for fair market value or may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other non-wholly owned
Subsidiary of the Borrower; and
(e) the Borrower or any Subsidiary of the Borrower may be
merged or consolidated with or into another Person; provided that the
Borrower or such Subsidiary shall be the continuing or surviving
corporation and no Default or Event of Default shall have occurred and
be continuing or would occur as a result thereof (and, in the case of
any such transaction involving a Subsidiary such Subsidiary shall
continue to be a Subsidiary or the Borrower shall have received fair
market value therefor as determined by the Board of Directors of the
Borrower); and provided further that the Borrower may not be merged or
consolidated with or into any Subsidiary.
<PAGE> 50
45
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Events of Default. If any of the following events
shall occur and be continuing:
(b) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(c) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(d) (i) The Borrower shall default in the observance or
performance of any covenant contained in subsection 6.8 or in Section
7; or (ii) the Borrower shall default in the observance or performance
of any other agreement contained in this Agreement (other than as
provided above in this Section), and such default described in this
clause (ii) shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, beyond
the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; provided, however, that no Default or Event of Default
shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any
default or other event or condition referred to in this paragraph shall
have occurred shall be equal to at least $100,000,000; or (i) The
Borrower or any of its Subsidiaries shall commence any case, proceeding
or other action (A) under any
<PAGE> 51
46
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower or any
of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its
inability to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or in excess of the
<PAGE> 52
47
amount recoverable by insurance) of $100,000,000 (net of any related
tax benefit) or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of 30% or more of any
outstanding class of Capital Stock having ordinary voting power in the
election of directors of the Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall not
consist of a majority of Continuing Directors; "Continuing Directors"
shall mean the directors of the Borrower on the Closing Date and each
other director, if such other director's nomination for election to the
Board of Directors of the Borrower is recommended by a majority of the
then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Revolving Credit Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such Lender
under this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly
<PAGE> 53
48
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
SECTION 9.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
SECTION 9.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
SECTION 9.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or
<PAGE> 54
49
concurrence of the Majority Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Majority Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
SECTION 9.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION 9.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent 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 appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
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
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of
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the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
SECTION 9.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Revolving Credit Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
which are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Administrative Agent's gross negligence
or willful misconduct. The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.
SECTION 9.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower as though
the Administrative Agent were not the Administrative Agent hereunder and under
the other Loan Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
SECTION 9.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Majority Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
(provided that it shall have been approved by the Borrower), shall succeed to
the rights, powers and duties of the Administrative Agent hereunder. Effective
upon such appointment and approval, the term "Administrative Agent" shall mean
such successor agent, and the former Administrative Agent's rights, powers and
duties as Administrative Agent shall be
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terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9.10. The Lead Arranger and the Syndication Agent.
Neither the Lead Arranger nor the Syndication Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, neither
the Lead Arranger nor the Syndication Agent shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on the Lead Arranger or the Syndication Agent in
deciding to enter into this Agreement or in taking or not taking any action
hereunder.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers. Neither this Agreement
nor any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate or amount of any
interest or fee payable hereunder, or change any definition relating to any fees
payable hereunder, or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Revolving
Credit Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentages specified in the definitions, of Majority Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 9 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and
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shall be binding upon the Borrower, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former positions
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
SECTION 10.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) in the case of
delivery by hand, when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and the Administrative Agent,
and as set forth in Schedule I in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective parties
hereto:
The Borrower: Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760
Attention: Lawrence C. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 508-650-8951
with a copy to:
General Counsel's Office
Fax: 508-650-8960
The Administrative Merrill Lynch Capital Corporation
Agent: World Financial Center
North Tower
250 Vesey St.
New York, NY 10281
Attention: Jack Lucid
Fax: 212-449-8230
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7 or 3.2 shall not be
effective until received.
<PAGE> 58
53
SECTION 10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
SECTION 10.5 Payment of Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, provided that in connection with any
workout or restructuring, the Borrower shall pay the fees and disbursements of
(i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of
<PAGE> 59
54
the Borrower, any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of the Administrative
Agent or any such Lender. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder.
SECTION 10.6 Successors and Assigns; Participations and
Assignments. (b) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of each Lender.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 10.1(a). The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 10.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 3.9, 3.10 and 3.11 with respect
to its participation in the Revolving Credit Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided further that no Participant shall be entitled to
receive any greater amount pursuant to any such subsection than the transferor
<PAGE> 60
55
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(d) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank, financial institution or other entity , the
sum of the aggregate principal amount of the Loans and the aggregate amount of
the unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of the unused Revolving
Credit Commitment remaining with the assigning Lender shall be not less than
$10,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Revolving Credit Commitments as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in 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 assigning Lender shall cease to be a party hereto).
(e) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitments of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries
<PAGE> 61
56
with respect thereto being made in the Register. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(g) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 10.14, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
SECTION 10.7 Adjustments; Set-off. (b) If any Lender (a
"benefitted Lender") shall at any time receive any payment of all or part of its
Loans then due and owing, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 8(e), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Loans then due and
owing, or interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(c) In addition to any rights and remedies of the Lenders
provided by law,
<PAGE> 62
57
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 10.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.
SECTION 10.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 10.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
SECTION 10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 10.12 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(b) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general
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58
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(c) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(d) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(e) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(f) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
SECTION 10.13 Acknowledgements. The Borrower hereby
acknowledges that:
(b) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(c) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(d) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
SECTION 10.14 Confidentiality. Each Lender agrees to keep
confidential any written or oral information (a) provided to it by or on behalf
of the Borrower or any of its Subsidiaries pursuant to or in connection with
this Agreement or (b) obtained by such Lender based on a review of the books and
records of the Borrower or any of its Subsidiaries; provided
<PAGE> 64
59
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Transferee which receives such information having been made aware of the
confidential nature thereof and having agreed to abide by the provisions of this
subsection 10.14, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, and to employees and officers of
its Affiliates who agree to be bound by the terms of this subsection 10.14 and
who have a need for such information in connection with this Agreement or other
transactions or proposed transactions with the Borrower, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Lender,
(v) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (vi) which has
been publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
SECTION 10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS
AGREEMENT TO BE DULY EXECUTED AND DELIVERED BY THEIR PROPER AND DULY AUTHORIZED
OFFICERS AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
BOSTON SCIENTIFIC CORPORATION
By: _________________________________
Name:
Title:
MERRILL LYNCH CAPITAL CORPORATION,
as Administrative Agent, Lead Arranger,
Syndication Agent and as a Lender
<PAGE> 65
60
By: _________________________________
Name:
Title:
<PAGE> 66
SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
<TABLE>
<CAPTION>
Lender and Address Revolving Credit Commitment
------------------ ---------------------------
<S> <C>
Merrill Lynch Capital Corporation $600,000,000
World Financial Center
North Tower
250 Vesey Street
New York, NY 10281
Attn: Jack Lucid
Telecopy: (212) 449-8230
</TABLE>
