<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-12430
WESTERN ATLAS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3899675
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210-4867
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (310) 888-2500
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
On April 30, 1997 there were 53,768,496 shares of Common Stock outstanding.
Page 1 of 16
<PAGE>
WESTERN ATLAS INC.
INDEX
REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1997
PAGE
NUMBER
------
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
Consolidated Statements of Operations
Three months ended March 31, 1997 and
March 31, 1996 3
Consolidated Balance Sheets
March 31, 1997 and March 31, 1996 4
Consolidated Statements of Cash Flows
Three months ended March 31, 1997 and
March 31, 1996 5
Notes to Consolidated Financial Statements 6
ITEM 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II. OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K 10
Signature 16
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<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
WESTERN ATLAS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(THOUSANDS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED
MARCH 31,
--------------------------
1997 1996
------------ ------------
Sales and Service Revenues $ 703,012 $ 549,456
------------ ------------
Costs and Expenses
Cost of sales 498,317 378,289
Selling, general and administrative 89,997 71,021
Depreciation and amortization 53,280 53,576
Interest, net 10,081 8,764
------------ ------------
Total Costs and Expenses 651,675 511,650
------------ ------------
Earnings before Taxes on Income 51,337 37,806
Taxes on Income (20,535) (15,122)
------------ ------------
Net Earnings $ 30,802 $ 22,684
------------ ------------
------------ ------------
Net Earnings Per Share $ 0.56 $ 0.42
------- -------
------- -------
Shares used in computing net earnings per share 54,746,865 54,245,052
See accompanying notes to consolidated financial statements.
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<PAGE>
WESTERN ATLAS INC.
CONSOLIDATED BALANCE SHEETS
(THOUSANDS OF DOLLARS)
MARCH 31, DECEMBER 31,
1997 1996
-------------- -------------
ASSETS
Current Assets
Cash and cash equivalents $ 15,133 $ 165,763
Accounts receivable, net 842,793 755,507
Inventories less progress billings 184,021 137,158
Deferred tax assets 120,231 96,685
Other prepaid expenses 45,969 38,822
-------------- -------------
Total Current Assets 1,208,147 1,193,935
-------------- -------------
Property, Plant and Equipment, at cost 1,587,258 1,446,215
Less: accumulated depreciation (660,489) (621,455)
-------------- -------------
Property, Plant and Equipment, net 926,769 824,760
Goodwill and Other Intangibles, Net 451,117 454,914
Unallocated Purchase Price In Excess of
Norand Net Assets Acquired 257,336
Geophysical Data and Other Assets 249,452 309,267
-------------- -------------
Total Assets $ 3,092,821 $ 2,782,876
-------------- -------------
-------------- -------------
LIABILITIES AND SHAREHOLDERS' INVESTMENT
Current Liabilities
Accounts payable $ 587,042 $ 498,145
Payrolls and related expenses 124,391 147,714
Notes payable and current portion
of long-term obligations 334,100 80,516
-------------- -------------
Total Current Liabilities 1,045,533 726,375
-------------- -------------
Long-term Obligations 442,789 489,461
-------------- -------------
Deferred Taxes and Other Long-term Liabilities 75,495 64,102
-------------- -------------
Shareholders' Investment
Common stock 53,762 53,706
Additional paid-in capital 1,148,235 1,146,066
Retained earnings 322,260 291,458
Cumulative currency translation adjustment 9,762 12,482
Less: 83,552 and 13,552 treasury shares at cost
at March 31, 1997 and December 31, 1996,
respectively (5,015) (774)
-------------- -------------
Total Shareholders' Investment 1,529,004 1,502,938
-------------- -------------
Total Liabilities and Shareholders' Investment $ 3,092,821 $ 2,782,876
-------------- -------------
-------------- -------------
See accompanying notes to consolidated financial statements.
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<PAGE>
WESTERN ATLAS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(THOUSANDS OF DOLLARS)
THREE MONTHS ENDED
MARCH 31,
-------------------------
1997 1996
---------- -----------
Cash and Cash Equivalents at Beginning of Period $ 165,763 $ 116,715
----------- -----------
Cash Flows from Operating Activities:
Net earnings 30,802 22,684
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 53,280 53,576
Change in accounts receivable (39,106) 17,508
Change in inventories (8,178) (6,542)
Change in accounts payable 38,201 (10,035)
Change in payrolls and related expenses (23,125) (18,169)
Change in accrued pensions (15,169) (23,814)
Other operating activities (7,643) (74)
----------- -----------
Net Cash Provided by Operating Activities 29,062 35,134
----------- -----------
Cash Flows from Investing Activities:
Acquisition of businesses, net of cash acquired (269,084)
Capital expenditures (132,991) (49,082)
Geophysical data, net 64,124 4,812
Other investing activities (476) 9,401
----------- -----------
Net Cash Used in Investing Activities (338,427) (34,869)
----------- -----------
Cash Flows from Financing Activities:
Short-term obligations, net 206,479 9,931
Repayment of borrowings (48,324)
Other financing activities 580 4,580
----------- -----------
Net Cash Provided by Financing Activities 158,735 14,511
----------- -----------
Resulting in (Decrease) Increase in Cash
and Cash Equivalents (150,630) 14,776
----------- -----------
Cash and Cash Equivalents at End of Period $ 15,133 $ 131,491
----------- -----------
----------- -----------
Supplemental Disclosure of Cash Flow Information:
Interest paid $ 4,678 $ 3,488
Income taxes paid (refunded) $ 17,050 $ (1,704)
See accompanying notes to consolidated financial statements.
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<PAGE>
WESTERN ATLAS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
THREE MONTHS ENDED MARCH 31, 1997
1. The amounts included in this report are unaudited; however in the opinion
of management, all adjustments necessary for a fair statement of results
for the stated periods have been included. These adjustments are of a
normal recurring nature. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted. It
is suggested that these consolidated financial statements be read in
conjunction with the audited financial statements and notes thereto
included in the Company's 1996 Annual Report on Form 10-K. The results of
operations for the three months ended March 31, 1997 are not necessarily
indicative of operating results for the entire year.
2. The components of inventory balances are summarized below:
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
---------------------------
(THOUSANDS OF DOLLARS)
<S> <C> <C>
Raw materials and work in process $158,684 $136,185
Finished goods 37,837 25,296
Less progress billings (12,500) (24,323)
---------- ---------
Net inventories $184,021 $137,158
---------- ---------
---------- ---------
</TABLE>
3. Net interest expense is composed of the following:
THREE MONTHS ENDED
MARCH 31,
1997 1996
-----------------------
(THOUSANDS OF DOLLARS)
Interest expense $12,235 $10,959
Interest income (2,154) (2,195)
-------- --------
Net interest expense $10,081 $ 8,764
-------- --------
-------- --------
4. The Company acquired Norand Corporation ("Norand") on March 3, 1997, and
United Barcode Industries ("UBI") on April 4, 1997. These companies will be
integrated into the automated data collection ("ADC") business of the
Company's industrial automation systems operations. Both transactions
were funded using short-term uncommitted credit lines and excess cash, and
are being accounted for as purchases. The estimated purchase prices of
approximately $285 million and $110 million for Norand and UBI,
respectively, exceed the estimated book value of the net assets acquired.
The allocation of the estimated purchase prices to the net assets of Norand
and UBI has not been finalized. The Company is in the process of
appraising and otherwise determining the fair value of acquired liabilities
and tangible and intangible assets. Norand's fiscal 1996 revenues were
approximately $235 million. Norand designs, manufactures and markets mobile
computing systems and wireless data communications networks using radio
frequency technology. UBI is a European ADC company headquartered in
Sweden, with fiscal 1996 sales of approximately $100 million.
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<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. On May 4, 1997, the Company's Board of Directors approved, in principle, a
plan to distribute to Western Atlas Inc. ("WAI") shareholders all of the
outstanding common stock of a new company to be established ("Newco").
Newco will own and conduct substantially all of WAI's industrial
automation systems operations, which include its ADC and manufacturing
systems businesses. The distribution of such stock, which is expected to
be tax free to WAI and its shareholders, should be formally declared and
completed by the end of 1997.
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<PAGE>
WESTERN ATLAS INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The Company reported higher sales, net earnings and operating profit for the
three months ended March 31, 1997 compared with the three months ended March
31, 1996. Segment sales and operating profit were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
----------------------
SALES AND SERVICE REVENUES (THOUSANDS OF DOLLARS)
- --------------------------
<S> <C> <C>
Oilfield Services $375,947 $305,174
Industrial Automation Systems 327,065 244,282
-------- --------
Total sales and service revenues $703,012 $549,456
-------- --------
-------- --------
SEGMENT OPERATING PROFIT
- ------------------------
Oilfield Services $ 40,780 $ 32,162
Industrial Automation Systems 27,431 20,535
-------- --------
Total segment operating profit $ 68,211 $ 52,697
-------- --------
-------- --------
</TABLE>
The Oilfield Services segment reported higher sales and operating profit in the
current three months compared with the corresponding prior period. Increases
were driven primarily by the expansion of the segment's seismic operations due
to oil companies renewed emphasis on exploration projects in response to the
continuing rise in the worldwide demand for energy. The Company's wireline
business also experienced growth as a result of the introduction of a new
generation of logging tools and services. Oilfield Services' operating margins
were comparable to those of the corresponding prior period.
During the quarter, major upgrades were begun on three of the Company's large-
capacity seismic vessels. The Company plans to return these vessels to service
this May, which is historically the beginning of increased seismic survey
activity in the North Sea. Upgrades include the equipping of vessels with
additional streamers and new automated streamer deployment and seismic data
acquisition/processing systems. One of the vessels will be the first in the
world to utilize new seismic solid streamer technology.
The Industrial Automation Systems segment reported higher sales and operating
profit for the three months compared with the corresponding prior period. Sales
and operating profit of the Company's Manufacturing Systems Group were higher
than the corresponding prior period, due primarily to an increase in the
proportion of projects moving into installation and final delivery phases.
-8-
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
The Company acquired Norand on March 3, 1997, and UBI on April 4, 1997. These
companies will be integrated into the ADC business of the Company's industrial
automation systems operations. Both transactions were funded using short-term
uncommitted credit lines and excess cash, and are being accounted for as
purchases. The estimated purchase prices of approximately $285 million and
$110 million for Norand and UBI, respectively, exceed the estimated book value
of the net assets acquired. The allocation of the estimated purchase prices to
the net assets of Norand and UBI has not been finalized. The Company is in the
process of appraising and otherwise determining the fair value of acquired
liabilities and tangible and intangible assets. Norand's fiscal 1996 revenues
were approximately $235 million. Norand designs, manufactures and markets
mobile computing systems and wireless data communications networks using radio
frequency technology. UBI is a European ADC company headquartered in Sweden,
with fiscal 1996 sales of approximately $100 million.
On May 4, 1997, the Company's Board of Directors approved, in principle, a plan
to distribute to Western Atlas Inc. ("WAI") shareholders all of the outstanding
common stock of a new company to be established ("Newco"). Newco will own and
conduct substantially all of WAI's industrial automation systems operations,
which include its ADC and manufacturing systems businesses. The distribution
of such stock, which is expected to be tax free to WAI and its shareholders,
should be formally declared and completed by the end of 1997.
LIQUIDITY AND CAPITAL RESOURCES
The Company had cash and marketable securities of $15.1 million at March 31,
1997, compared with $165.8 million at December 31, 1996. The cash and
marketable securities balance decreased primarily as a result of the Norand
acquisition. The Norand and UBI acquisitions were funded, in part, by use of
short-term uncommitted credit lines. The Company expects that cash flow from
operations, along with available borrowing capacity, will be adequate to meet
working capital requirements. The Company currently has unused committed credit
facilities with a group of banks which permit the borrowing of up to $400
million.
-9-
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Reports on Form 8-K: In a report filed on Form 8-K dated February 22, 1997,
the Company reported the acquisition of Norand Corporation.
(b) See Exhibit Index included herein on page 11.
-10-
<PAGE>
WESTERN ATLAS INC.
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
2.1 Stock Purchase Agreement dated December 7, 1993, among Western Atlas
Inc., Western Atlas International, Inc., Western Research Holdings,
Inc., Litton Industries, Inc. and Dresser Industries, Inc. (Filed as
Exhibit 10M to Amendment No. 1, filed with the Commission on December
13, 1993 ("Amendment No. 1") to the Company's Registration Statement
on Form 10 No. 1-12430 filed with the Commission on October 12, 1993
and incorporated herein by reference.)
2.2 Agreement dated as of January 13, 1994, between Western Atlas
International, Inc. and Halliburton Company (Filed as Exhibit 10S to
Amendment No. 2, filed with the Commission on January 19, 1994
("Amendment No. 2"), to the Company's Registration Statement on Form
10 No. 1-12430 filed with the Commission on October 12, 1993 and
incorporated herein by reference.)
4.1 Indenture dated as of May 15, 1994 between the Company and The Bank of
New York, Trustee, providing for the issuance of securities in series,
filed as exhibit 4.4 to the Company's June 30, 1994 Quarterly Report
on Form 10-Q, and incorporated herein by reference.
4.2 Form of 8.55% Debentures due 2024 issued by the Company under such
indenture, filed as exhibit 4.5 to the Company's June 30, 1994
Quarterly Report on Form 10-Q, and incorporated herein by reference.
4.3 Form of 7-7/8% Notes due 2004 issued by the Company under such
indenture, filed as exhibit 4.6 to the Company's June 30, 1994
Quarterly Report on Form 10-Q, and incorporated herein by reference.
4.4 Other instruments defining the rights of holders of other long-term
debt of the Company are not filed as exhibits because the amount of
debt authorized under any such instrument does not exceed 10% of the
total assets of the Company and its consolidated subsidiaries. The
Company hereby undertakes to furnish a copy of any such instrument to
the Commission upon request.
-11-
<PAGE>
INDEX TO EXHIBITS, (CONTINUED)
4.5 Rights Agreement, dated as of August 17, 1994 between Western Atlas
Inc. and Chemical Trust Company of California, as Rights Agent, which
includes the form of Certificate of Designations setting forth the
terms of the Series A Junior Participating Preferred Stock, par value
$1.00 per share, of Western Atlas Inc., as Exhibit A; the form of
Right Certificate, as Exhibit B; and the Summary of Rights to
Purchase Preferred Shares, as Exhibit C, filed as Exhibit 4 to the
Company's August 17, 1994 current report on Form 8-K, and
incorporated herein by reference. Pursuant to the Rights Agreement,
printed Right Certificates will not be mailed until as soon as
practicable after the earlier of the tenth day after the public
announcement that a person or group has acquired beneficial ownership
of 15% or more of the Common Shares or the tenth business day (or such
later date as may be determined by action of the Board of Directors)
after a person commences, or announces its intention to commence, a
tender offer or exchange offer the consummation of which would result
in the beneficial ownership by a person or group of 15% of the Common
Shares.
4.6 $400,000,000 Amended and Restated Credit Agreement dated as of March
19, 1997, among Western Atlas Inc., the Banks listed therein, and
Morgan Guaranty Trust Company of New York as Agent, and Bank of
America National Trust and Savings Association, The Bank of New York,
CIBC Inc., The Chase Manhattan Bank, The First National Bank of
Chicago, NationsBank of Texas, N.A., and Wells Fargo Bank, N.A. as Co-
Agents, filed herein.
10.1 Distribution and Indemnity Agreement dated March 17, 1994, between
Litton Industries, Inc. and Western Atlas Inc., filed as Exhibit 10.1
to the Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
10.2 Tax Sharing Agreement entered into March 17, 1994, between Litton
Industries, Inc., and Western Atlas Inc., filed as Exhibit 10.2 to
the Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
10.3 Employee Benefits Agreement dated as of March 17, 1994, between
Litton Industries, Inc., and Western Atlas Inc., filed as Exhibit
10.4 to the Company's March 31, 1994 Quarterly Report on Form 10-Q,
and incorporated herein by reference.
10.4 Intellectual Property Agreement dated March 17, 1994, between Litton
Industries, Inc., and Western Atlas Inc., filed as Exhibit 10.5 to
the Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
-12-
<PAGE>
INDEX TO EXHIBITS, (CONTINUED)
10.5 Western Atlas International Agreement made as of March 17, 1994,
among Litton Industries, Inc., Western Research Holdings, Inc., and
Western Atlas Inc., filed as Exhibit 10.8 to the Company's March 31,
1994 Quarterly Report on Form 10-Q, and incorporated herein by
reference.
10.6 Western Tax Agreement made as of March 17, 1994, between Litton
Industries, Inc., and Western Research Holdings, Inc., filed as
Exhibit 10.9 to the Company's March 31, 1994 Quarterly Report on Form
10-Q, and incorporated herein by reference.
10.7 Change in Control Employment Agreements dated as of March 17, 1994,
between Western Atlas Inc., and each of Alton J. Brann, John R.
Russell and Norman L. Roberts, filed as Exhibit 10.11 to the
Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
10.8 Change in Control Employment Agreements dated as of November 16,
1995, between Western Atlas Inc., and each of Orval F. Brannan and
Damir S. Skerl, filed as exhibit 10.20 to the Company's 1995 Annual
Report on Form 10-K and incorporated herein by reference.
10.9 Western Atlas Inc. Director Stock Option Plan, filed as Exhibit 10.12
to the Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
10.10 Western Atlas International, Inc. Benefit Restoration Plan (Filed as
Exhibit 100 to Amendment No. 2 and incorporated herein by reference.)
10.11 Western Atlas International, Inc., Supplemental Retirement Plan
(Filed as Exhibit 10P to Amendment No. 1 and incorporated herein by
reference.)
10.12 Supplemental Retirement Agreement between Western Atlas Inc. and
Alton J. Brann dated March 17, 1994, filed as Exhibit 10.16 to the
Company's March 31, 1994 Quarterly Report on Form 10-Q, and
incorporated herein by reference.
10.13 Western Atlas Inc. Restoration Plan (Filed as Exhibit 10U to
Amendment No. 2 and incorporated herein by reference.)
10.14 Resolutions adopted by Board of Directors of Western Atlas Inc. on
March 17, 1994, with respect to Incentive Loan Program and form of
promissory note to evidence loans made thereunder, filed as Exhibit
10.20 to the Company's March 31, 1994 Quarterly Report on Form 10-Q,
and incorporated herein by reference.
-13-
<PAGE>
INDEX TO EXHIBITS, (CONTINUED)
10.15 Western Atlas Inc. Deferred Compensation Plan for Directors, filed as
exhibit 10.22 to the Company's 1994 Annual Report on Form 10-K and
incorporated herein by reference.
10.16 Western Atlas Inc. Individual Performance Award Plan, filed as
exhibit 10.23 to the Company's 1994 Annual Report on Form 10-K and
incorporated herein by reference.
10.17 Western Atlas Inc. 1995 Incentive Compensation Plan, filed as exhibit
10.24 to the Company's 1994 Annual Report on Form 10-K and
incorporated herein by reference.
10.18 Western Atlas Inc. Supplemental Executive Retirement Plan, filed as
exhibit 10.21 to the Company's 1995 Annual Report on Form 10-K and
incorporated herein by reference.
10.19 Employment Agreement dated as of December 9, 1995, between Western
Atlas Inc., and Clayton A. Williams, filed as exhibit 10.22 to the
Company's 1995 Annual Report on Form 10-K and incorporated herein by
reference.
10.20 Western Atlas Inc. 1993 Stock Incentive Plan, as amended on February
13, 1996, filed as exhibit 10.23 to the Company's 1995 Annual Report
on Form 10-K and incorporated herein by reference.
10.21 Consulting Agreement dated as of August 1, 1996, between Western
Atlas Inc., and Joseph T. Casey, filed as exhibit 10.21 to the
Company's 1996 Annual Report on Form 10-K and incorporated herein by
reference.
11 Statement of Computation of Earnings per share included herein on
page 15.
27 Financial Data Schedule (filed only electronically with the
Securities and Exchange Commission).
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<PAGE>
EXHIBIT 11
WESTERN ATLAS INC.
PRIMARY EARNINGS PER SHARE AND FULLY DILUTED EARNINGS PER SHARE
(THOUSANDS OF DOLLARS, EXCEPT PER SHARE DATA)
THREE MONTHS ENDED
MARCH 31,
--------------------------
1997 1996
------------ ------------
EARNINGS PER SHARE
Net earnings $ 30,802 $ 22,684
------------ ------------
------------ ------------
Primary earnings per share $ 0.56 $ 0.42
------------ ------------
------------ ------------
Fully diluted earnings per share $ 0.56 $ 0.42
------------ ------------
------------ ------------
SHARES USED IN PRIMARY
EARNINGS PER SHARE COMPUTATION
Weighted average common shares
outstanding 53,743,047 53,282,797
Common stock equivalents 1,003,818 962,255
------------ ------------
Common and common equivalent
shares - primary 54,746,865 54,245,052
------------ ------------
------------ ------------
SHARES USED IN FULLY DILUTED
EARNINGS PER SHARE COMPUTATION
Common and common equivalent
shares - primary 54,746,865 54,245,052
Additional potentially dilutive
effect of stock options - 101,811
------------ ------------
Common and common equivalent
shares - fully diluted 54,746,865 54,346,863
------------ ------------
------------ ------------
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WESTERN ATLAS INC.
(Registrant)
By /s/ Michael E. Keane
-------------------------
Michael E. Keane
Senior Vice President and
Chief Financial Officer
May 13, 1997
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<PAGE>
EXECUTION COPY
EXHIBIT 4.6
$400,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
March 19, 1997
among
Western Atlas Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent, and
Bank of America National Trust and Savings Association
The Bank of New York
The Chase Manhattan Bank
CIBC Inc.
The First National Bank of Chicago
NationsBank of Texas, N.A.
and
Wells Fargo Bank, N.A.,
as Co-Agents
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. . . . . . . . . . . 18
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. . . . . . . . . . . . . . . . . . . 19
SECTION 2.02. NOTICE OF COMMITTED BORROWINGS . . . . . . . . . . . . . 19
SECTION 2.03. MONEY MARKET BORROWINGS. . . . . . . . . . . . . . . . . 20
SECTION 2.04. NOTICE TO BANKS; FUNDING OF LOANS. . . . . . . . . . . . 24
SECTION 2.05. NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.06. MATURITY OF LOANS. . . . . . . . . . . . . . . . . . . . 26
SECTION 2.07. INTEREST RATES . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.08. FACILITY FEE . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS . . . . 30
SECTION 2.10. SCHEDULED TERMINATION OR REDUCTION OF COMMITMENTS. . . . 30
SECTION 2.11. OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. . . . . . . . . . . . 31
SECTION 2.13. FUNDING LOSSES . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.14. COMPUTATION OF INTEREST AND FEES . . . . . . . . . . . . 32
SECTION 2.15. REGULATION D COMPENSATION. . . . . . . . . . . . . . . . 33
SECTION 2.16. INCREASED COMMITMENTS; ADDITIONAL BANKS. . . . . . . . . 33
ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.02. BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. CORPORATE EXISTENCE AND POWER. . . . . . . . . . . . . . 37
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.04. FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . 37
SECTION 4.05. LITIGATION . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.06. COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . . 39
SECTION 4.07. ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . . 39
SECTION 4.08. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . 40
<PAGE>
SECTION 4.09. MATERIAL SUBSIDIARIES. . . . . . . . . . . . . . . . . . 40
SECTION 4.10. NOT AN INVESTMENT COMPANY. . . . . . . . . . . . . . . . 40
SECTION 4.11. USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.12. FULL DISCLOSURE. . . . . . . . . . . . . . . . . . . . . 40
ARTICLE V
COVENANTS
SECTION 5.01. INFORMATION. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE . . . . . . . . . . . 43
SECTION 5.03. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE . . . . 43
SECTION 5.04. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . 44
SECTION 5.05. LEVERAGE RATIO . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.06. MAINTENANCE OF CERTAIN OPERATIONS. . . . . . . . . . . . 44
SECTION 5.07. LIMITATION ON SUBSIDIARY DEBT. . . . . . . . . . . . . . 44
SECTION 5.08. NEGATIVE PLEDGE. . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. . . . . . . 46
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 46
SECTION 6.02. NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. . . . . . . . . . . . . . 49
SECTION 7.02. AGENT AND AFFILIATES . . . . . . . . . . . . . . . . . . 49
SECTION 7.03. ACTION BY AGENT. . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.04. CONSULTATION WITH EXPERTS. . . . . . . . . . . . . . . . 49
SECTION 7.05. LIABILITY OF AGENT . . . . . . . . . . . . . . . . . . . 49
SECTION 7.06. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.07. CREDIT DECISION. . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.08. SUCCESSOR AGENT. . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.09. AGENT'S FEES . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.10. CO-AGENTS. . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.02. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.03. INCREASED COST AND REDUCED RETURN. . . . . . . . . . . . 53
SECTION 8.04. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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SECTION 8.06. SUBSTITUTION OF BANK . . . . . . . . . . . . . . . . . . 57
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.02. NO WAIVERS.. . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.03. EXPENSES; INDEMNIFICATION. . . . . . . . . . . . . . . . 58
SECTION 9.04. SHARING OF SET-OFFS. . . . . . . . . . . . . . . . . . . 58
SECTION 9.05. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . 59
SECTION 9.06. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . 59
SECTION 9.07. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. . . . . . . . 61
SECTION 9.09. COUNTERPARTS; INTEGRATION. . . . . . . . . . . . . . . . 62
SECTION 9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . 62
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Schedule I - Pricing Grid
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower and
the Guarantors
Exhibit F - Opinion of Special Counsel for the
Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Amended and Restated Subsidiary Guarantee
Agreement
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AMENDED AND RESTATED
CREDIT AGREEMENT
AGREEMENT dated as of March 19, 1997 among WESTERN ATLAS INC., the
BANKS party hereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent, and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK,
THE CHASE MANHATTAN BANK, CIBC INC., THE FIRST NATIONAL BANK OF CHICAGO,
NATIONSBANK OF TEXAS, N.A. and WELLS FARGO BANK, N.A., as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks party hereto, the Agent and the Co-
Agents are parties to an Amended and Restated Credit Agreement dated as of
December 22, 1994 (as amended to the Effective Date (as defined below), the
"Original Agreement"), which Original Agreement amended and restated that
certain Credit Agreement dated as of December 23, 1993 among the Borrower, the
Banks, the Agent and the Co-Agent; and
WHEREAS, the parties hereto wish to modify the Original Agreement in a
number of respects, as more fully set forth below;
NOW, THEREFORE, the parties hereto hereby agree that, on and as of the
Effective Date, the Original Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Additional Bank" has the meaning set forth in Section 2.16(b).
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
<PAGE>
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"Affiliate" means any Person (other than a Subsidiary) directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Borrower. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means the Original Agreement as amended and restated by
this Amended and Restated Agreement and as the same may be further amended or
restated from time to time in accordance with the terms hereof.
"Amended and Restated Agreement" means this Amended and Restated
Credit Agreement dated as of March 19, 1997 among the Borrower, the Banks, the
Agent and the Co-Agents.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks under the Financing Documents, and its
successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each financial institution listed on the signature pages
hereof, each Additional Bank which becomes a Bank pursuant to Section 2.16, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
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"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan made or to be made by a Bank
as a Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Western Atlas Inc., a Delaware corporation, and its
successors.
"Borrower's 1995 Form 10-K" means the Borrower's annual report on Form
10-K for 1995, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Borrower's Latest Form 10-Q" means the Borrower's quarterly report on
Form 10-Q for the quarter ended September 30, 1996, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section 1.03.
"Capital Lease" means a lease that would be capitalized on a balance
sheet of the lessee prepared in accordance with generally accepted accounting
principles.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan made or to be made by a Bank as a CD
Loan in accordance with the applicable Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means The Chase Manhattan Bank, CIBC Inc. and
Morgan Guaranty Trust Company of New York, or such other bank or banks as the
Borrower and the Agent may from time to time mutually designate.
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"Change of Control" means any of the following:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the then outstanding shares of common stock of the Borrower (the
"Outstanding Borrower Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Borrower entitled to vote generally in
the election of directors (the "Outstanding Borrower Voting Securities");
PROVIDED, however, that for purposes of this subsection (a), the following
acquisitions of stock shall not constitute a Change of Control: (i) any
acquisition by the Borrower, (ii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Borrower or any corporation
controlled by the Borrower or (iii) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i), (ii) and (iii) of subsection
(c) of this definition;
(b) Individuals who, as of the date hereof, constitute the Board of
Directors of the Borrower (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; PROVIDED, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Borrower's shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board;
(c) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Borrower
(a "Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Borrower Common
Stock and Outstanding Borrower Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 60%
4
<PAGE>
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Borrower or all or
substantially all of the Borrower's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Borrower
Common Stock and Outstanding Borrower Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or related trust) of the
Borrower or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the shareholders of the Borrower of a complete
liquidation or dissolution of the Borrower.
"Co-Agent" means each of Bank of America National Trust and Savings
Association, The Bank of New York, The Chase Manhattan Bank, CIBC Inc., The
First National Bank of Chicago, NationsBank of Texas, N.A. and Wells Fargo Bank,
N.A. in its capacity as co-agent hereunder, and its successors in such capacity.
"Commitment" means (i) with respect to each Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank on
the signature pages of this Amended and Restated Agreement and (ii) with respect
to each Additional Bank or Assignee which becomes a Bank pursuant to Section
2.16 or 9.06(c), the amount of the Commitment thereby assumed by it, in each
case as such amount may be changed from time to time pursuant to Sections 2.09,
2.10, 2.16 and 9.06(c).
"Committed Loan" means a loan made or to be made by a Bank pursuant to
Section 2.01.
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<PAGE>
"Consolidated Current Liabilities" means at any date the consolidated
current liabilities of the Borrower and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Debt" means, at any date, the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, to the extent deducted in the determination of such
Consolidated Net Income, Consolidated Interest Expense for such period, the
provision for income taxes for such period and depreciation and amortization
expense for such period.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Consolidated Subsidiaries for such period, determined on a
consolidated basis.
"Consolidated Net Worth" means at any date the shareholders'
investment in the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date; PROVIDED that PetroAlliance shall not be deemed a Consolidated
Subsidiary.
"Consolidated Tangible Net Assets" means at any date Consolidated
Total Assets less Intangible Assets less Consolidated Current Liabilities, all
determined as of such date.
"Consolidated Total Assets" means at any date the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person
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evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable and deferred employee compensation
obligations arising in the ordinary course of business, (iv) all obligations of
such Person as lessee which are capitalized in accordance with generally
accepted accounting principles, (v) all unpaid reimbursement obligations of such
Person in respect of letters of credit or similar instruments but only to the
extent that either (x) the issuer has honored a drawing thereunder or (y)
payment of such obligation is otherwise due under the terms thereof, (vi) all
Debt secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, and (vii) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent; PROVIDED that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to
7
<PAGE>
refer to either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"Effective Date" means the date the Commitments become effective in
accordance with Section 3.01.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Equity Security" means any capital stock or other equity security, or
any warrant or other right to purchase such an equity security; PROVIDED that
any instrument or other security which constitutes Debt of a Person shall not
for purposes of this Agreement constitute an Equity Security of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
8
<PAGE>
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a Bank
as a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
The Chase Manhattan Bank, CIBC Inc. and Morgan Guaranty Trust Company of New
York, or such other bank or banks as the Borrower and the Agent may from time to
time mutually designate.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day (the "accrual date"), the rate
per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on the
accrual date, as published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, PROVIDED that (i) if the accrual
date is not a Domestic Business Day, the Federal Funds Rate for the accrual date
shall be such rate on such transactions on the next preceding
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Domestic Business Day as so published on the next succeeding Domestic
Business Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for the accrual date
shall be the average rate quoted to Morgan Guaranty Trust Company of New York
on the accrual date (or next preceding Domestic Business Day) on such
transactions as determined by the Agent.
"Financing Documents" means this Agreement, the Notes and the
Subsidiary Guarantee Agreement.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), PROVIDED that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means each Subsidiary from time to time party to the
Subsidiary Guarantee Agreement.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Increased Commitments" has the meaning set forth in Section 2.16(a).
"Indemnitee" has the meaning set forth in Section 9.03(b).
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"Intangible Assets" means, at any date, the amount (to the extent
reflected in Consolidated Total Assets) of (i) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to September 30, 1996 in the book
value of any asset owned by the Borrower or a Consolidated Subsidiary, (ii)
all investments in unconsolidated Subsidiaries and, to the extent the same
exceed $10,000,000 in aggregate amount, all direct and indirect investments
in PetroAlliance and all equity investments in other Persons which are not
Subsidiaries (other than investments in readily marketable securities) and
(iii) all unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or developmental expenses and other intangible
assets (other than spec data), determined on a consolidated basis. Publicly
traded securities will be deemed "readily marketable" if the investment of
the Borrower or a Subsidiary therein may be offered or sold to the public
generally without registration under the Securities Act of 1933, as amended.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending
one, two, three or six months thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on
the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
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(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower
may elect in the applicable Notice of Borrowing; PROVIDED that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(4) with respect to each Money Market LIBOR Borrowing, the period commencing
on the date of such Borrowing and ending such whole number of months
thereafter as the Borrower may elect in accordance with Section 2.03;
PROVIDED that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on
the last Euro-Dollar Business Day of a calendar month; and
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(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 14 days) as the Borrower may elect in
accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Litton" means Litton Industries, Inc., a Delaware corporation.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its
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Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal amount exceeding $25,000,000.
"Material Financial Obligations" means a principal amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, exceeding in the aggregate $25,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Material Subsidiary" means (i) any Guarantor and (ii) any other
Subsidiary, including its Subsidiaries, which meets any of the following
conditions:
(1) the Borrower's and its other Subsidiaries' investments in and
advances to such Subsidiary exceed 5 percent of the total assets of the
Borrower and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
(2) the Borrower's and its other Subsidiaries' proportionate share
of the total assets (after intercompany eliminations) of such Subsidiary
exceeds 5 percent of the total assets of the Borrower and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or
(3) the Borrower's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle of such Subsidiary
exceeds 5 percent of such income of the Borrower and its Subsidiaries
consolidated for the most recently completed fiscal year.
Computational note: For purposes of making the prescribed income
test the following guidance should be applied:
1. When a loss has been incurred by either the Borrower and its
Subsidiaries consolidated or the tested Subsidiary, but not both, the equity
in the income or loss of the tested Subsidiary should be excluded from the
income of the Borrower and its Subsidiaries consolidated for purposes of the
computation.
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2. If income of the Borrower and its Subsidiaries consolidated for
the most recent fiscal year is at least 5 percent lower than the average of
the income for the last five fiscal years, such average income should be
substituted for purposes of the computation. Any loss years should be
omitted for purposes of computing average income.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made
by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Agent; PROVIDED that any Bank may from time to time by
notice to the Borrower and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case all references
herein to the Money Market Lending Office of such Bank shall be deemed to
refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make
contributions in an amount exceeding $1,000,000 per annum or has within the
preceding five plan years made
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such contributions, including for these purposes any Person which ceased to
be a member of the ERISA Group during such five year period.
"Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Obligors" means the Borrower and the Guarantors.
"Original Agreement" has the meaning set forth in the recitals
hereto.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PetroAlliance" means PetroAlliance Services Company Limited, a
Cyprus limited liability company.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.
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"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time
as its Prime Rate.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any
one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 60% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 60% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Services, and its successors.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect
a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower (or,
if such term is used with reference to another Person, by such other Person);
PROVIDED that PetroAlliance shall not be deemed a Subsidiary.
"Subsidiary Guarantee Agreement" means the Amended and Restated
Subsidiary Guarantee Agreement dated as of the date hereof among the
Borrower, the Agent and the Subsidiaries of the Borrower from time to time
parties thereto, substantially in the form of Exhibit H, as the same may be
amended from time to time in accordance with the terms thereof.
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"Termination Date" means March 19, 2002 (or if such date is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day).
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but only
to the extent that such excess represents a potential liability of a member
of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"WAII" means Western Atlas International, Inc., a Delaware
corporation.
"WAII Group" means WAII and its Subsidiaries.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in
by the Borrower's independent public accountants) with the most recent
audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks; PROVIDED that, if the
Borrower notifies the Agent that the Borrower wishes to amend any covenant in
Article V to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the Agent
notifies the Borrower that the Required Banks wish to amend Article V for
such purpose), then the Borrower's compliance with
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such covenant shall be determined on the basis of generally accepted
accounting principles in effect immediately before the relevant change in
generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Banks.
SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks made or to be made to the
Borrower pursuant to Article II on a single date and for a single Interest
Period. Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (E.G., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which participation therein
is determined (I.E., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their Commitments, while
a "Money Market Borrowing" is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids in accordance
therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. Subject to the terms and
conditions set forth in this Agreement, each Bank severally agrees to make
loans to the Borrower from time to time during the Revolving Credit Period in
an aggregate principal amount at any time outstanding not to exceed the
amount of such Bank's Commitment. Each Borrowing under this Section 2.01
shall be in an aggregate principal amount of $10,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be in an aggregate
amount equal to the amount available in accordance with Section 3.02(b) and
shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this Section, repay, or to the extent permitted by Section 2.11, prepay
loans and reborrow under this Section at any time during the Revolving Credit
Period.
SECTION 2.02. NOTICE OF COMMITTED BORROWINGS. The Borrower shall
give the Agent notice (a "Notice of
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Committed Borrowing") not later than 10:30 A.M. (New York City time) on (x)
the date of each Base Rate Borrowing, (y) the second Domestic Business Day
before each CD Borrowing and (z) the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Committed Fixed Rate Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. MONEY MARKET BORROWINGS.
(a) THE MONEY MARKET OPTION. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Banks during the Revolving Credit Period to make offers to make
Money Market Loans to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall
transmit to the Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received no
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of
a LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective) specifying:
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(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES.
(i) Each Bank may submit a Money Market Quote containing an offer
or offers to make Money Market Loans in response to any Invitation for Money
Market Quotes. Each Money Market Quote must comply with the requirements of
this subsection (d) and must be submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall have mutually agreed
and shall have notified to the
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Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); PROVIDED that Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Agent or such affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than (x) 1:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction.
Subject to Articles III and VI, any Money Market Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or less
than the Commitment of the quoting Bank, (x) must be $5,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest
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Period specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language (other than
the limitation set forth in clause (ii)(B)(z) above);
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO BORROWER. The Agent shall promptly notify the Borrower
of the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR
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Auction or Absolute Rate Auction for which such change is to be effective),
the Borrower shall notify the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Money Market Quote in whole or in
part; PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) ALLOCATION BY AGENT. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. NOTICE TO BANKS; FUNDING OF LOANS.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
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(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 9.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank, such
Bank shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the Agent as
provided in subsection (b), or remitted by the Borrower to the Agent as provided
in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and, if such Bank shall fail
to do so within one Domestic Business Day, the Borrower severally agree to repay
to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at the Federal
Funds Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.05. NOTES. (a) The Loans of each Bank shall be evidenced
by a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type
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be evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact
that it evidences solely Loans of the relevant type. Each reference in this
Agreement to the "Note" of such Bank shall be deemed to refer to and include
any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it, and the date and
amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; PROVIDED that the failure of any Bank to
make any such recordation or endorsement shall not affect the obligations of
any Obligor under any Financing Document. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day plus the Adjusted
CD Rate applicable to such Interest Period; PROVIDED that if any CD Loan shall,
as a result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall
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<PAGE>
bear interest during such Interest Period at the rate applicable to Base Rate
Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the higher of (i) the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Loan and (ii) the rate applicable to Base
Rate Loans for such day.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if necessary, to the
next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including
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without limitation any basic, supplemental or emergency reserves) for a
member bank of the Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of new non-personal time deposits
in dollars in New York City having a maturity comparable to the related
Interest Period and in an amount of $100,000 or more. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective date of any change
in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand,
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for each day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal to the sum of
2% plus the higher of (i) the sum of the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Loan and (ii) the
Euro-Dollar Margin for such day plus the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period
of time not longer than three months as the Agent may select) deposits in
dollars in an amount approximately equal to such overdue payment due to each
of the Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference
Bank in the London interbank market for the applicable period determined as
provided above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if
the circumstances described in clause (a) or (b) of Section 8.01 shall exist,
at a rate per annum equal to the sum of 2% plus the rate applicable to Base
Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
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determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. FACILITY FEE. The Borrower shall pay to the Agent for
the account of the Banks ratably in proportion to their Commitments a facility
fee at the Facility Fee Rate determined daily in accordance with the Pricing
Schedule. Such facility fee shall accrue (i) from and including the Effective
Date to but excluding the Termination Date (or earlier date of termination of
the Commitments in their entirety), on the daily aggregate amount of the
Commitments (whether used or unused) and (ii) from and including the Termination
Date or earlier date of termination to but excluding the date the Loans shall be
repaid in their entirety, on the daily aggregate outstanding principal amount of
the Loans. Accrued fees under this subsection (a) shall be payable quarterly in
arrears on the last Euro-Dollar Business Day of each March, June, September and
December, and upon the date of termination of the Commitments in their entirety
(and, if later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The
Borrower may, upon at least three Domestic Business Days' notice to the Agent
(which shall promptly notify the Banks), (i) terminate the Commitments at any
time, if no Loans are outstanding at such time or (ii) ratably reduce from time
to time by an aggregate amount of $10,000,000 or any larger multiple thereof,
the aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
SECTION 2.10. SCHEDULED TERMINATION OR REDUCTION OF COMMITMENTS. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. OPTIONAL PREPAYMENTS. (a) The Borrower may (i) upon
at least one Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing (or
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any Money Market Borrowing bearing interest at the Base Rate pursuant to
Section 8.01(a)), (ii) upon at least three Domestic Business Days' notice to
the Agent, subject to Section 2.13, prepay any CD Borrowing and (iii) upon at
least three Euro-Dollar Business Days' notice to the Agent, subject to
Section 2.13, prepay any Euro-Dollar Borrowing, in whole at any time, or from
time to time in part in amounts aggregating $10,000,000 or any larger
multiple of $1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Borrowing.
(b) Except as provided in Section 2.11(a), the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
fees hereunder, not later than 12:00 Noon (New York City time) on the date
when due, in Federal or other funds immediately available in New York City,
to the Agent at its address referred to in Section 9.01. The Agent will
promptly distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be due
on a day which is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or
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otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. FUNDING LOSSES. If the Borrower makes any payment
of principal with respect to any Fixed Rate Loan (pursuant to Article II, VI
or VIII or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the last day of an applicable period fixed
pursuant to Section 2.07(d), or if the Borrower fails to borrow or prepay any
Fixed Rate Loans after notice has been given to any Bank in accordance with
Section 2.04(a) or 2.11(c), the Borrower shall reimburse each Bank within 15
days after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any
such payment or failure to borrow or prepay, PROVIDED that such Bank shall
have delivered to the Borrower a certificate as to the amount of such loss or
expense, setting forth the basis of calculation thereof, which certificate
shall be conclusive in the absence of manifest error.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
facility fees shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
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SECTION 2.15. REGULATION D COMPENSATION. For so long as any Bank
maintains reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Bank to United
States residents), and as a result the cost to such Bank (or its Euro-Dollar
Lending Office) of making or maintaining its Euro-Dollar Loans is increased,
then such Bank may require the Borrower to pay, contemporaneously (or at such
other time or times as the Borrower and such Bank may mutually agree) with each
payment of interest on the Euro-Dollar Loans, additional interest on the related
Euro-Dollar Loan of such Bank at a rate per annum up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one MINUS the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Agent, in which case such
additional interest on the Euro-Dollar Loans of such Bank shall be payable to
such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after the giving of
such notice and (y) shall furnish to the Borrower at least five Euro-Dollar
Business Days prior to each date on which interest is payable on the Euro-Dollar
Loans (or at such other time or times as the Borrower and such Bank may mutually
agree) an officer's certificate setting forth the amount to which such Bank is
then entitled under this Section (which shall be consistent with such Bank's
good faith estimate of the level at which the related reserves are maintained by
it). Each such certificate shall be accompanied by such information as the
Borrower may reasonably request as to the computation set forth therein.
SECTION 2.16. INCREASED COMMITMENTS; ADDITIONAL BANKS. (a) On a
single occasion subsequent to the Effective Date, the Borrower may, upon at
least 30 days' notice to the Agent (which shall promptly provide a copy of
such notice to the Banks), propose to increase the aggregate amount of the
Commitments by an amount not to exceed $100,000,000 (the amount of any such
increase, the "Increased Commitments"). Each Bank party to this Agreement at
such time shall have the right (but no obligation), for a period of 15 days
following receipt of such notice, to elect by notice to the Borrower and the
Agent to increase its Commitment by a principal amount which bears the same
ratio to the Increased Commitments as
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its then Commitment bears to the aggregate Commitments then existing.
(b) If any Bank party to this Agreement shall not elect to
increase its Commitment pursuant to subsection (a) of this Section, the
Borrower may designate another bank or other banks (which may be, but need
not be, one or more of the existing Banks) which at the time agree to (i) in
the case of any such bank that is an existing Bank, increase its Commitment
and (ii) in the case of any other such bank (an "Additional Bank"), become a
party to this Agreement. The sum of the increases in the Commitments of the
existing Banks pursuant to this subsection (b) plus the Commitments of the
Additional Banks shall not in the aggregate exceed the unsubscribed amount of
the Increased Commitments.
(c) An increase in the aggregate amount of the Commitments
pursuant to this Section 2.16 shall become effective upon the receipt by the
Agent of an agreement in form and substance satisfactory to the Agent signed
by the Borrower, by each Additional Bank and by each other Bank whose
Commitment is to be increased, setting forth the new Commitments of such
Banks and setting forth the agreement of each Additional Bank to become a
party to this Agreement and to be bound by all the terms and provisions
hereof, together with such evidence of appropriate corporate authorization on
the part of the Borrower with respect to the Increased Commitments and such
opinions of counsel for the Borrower with respect to the Increased
Commitments as the Agent may reasonably request.
ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. This Amended and Restated Agreement
shall become effective on the date that each of the following conditions
shall have been satisfied (or waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party);
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(b) receipt by the Agent for the account of each Bank of a duly
executed Note dated on or before the Effective Date complying with the
provisions of Section 2.05;
(c) receipt by the Agent of counterparts of the Subsidiary Guarantee
Agreement, duly executed by the Borrower and each of Subsidiaries listed on
the signature pages thereof;
(d) receipt by the Agent of an opinion of the principal legal officer
of the Borrower, substantially in the form of Exhibit E hereto and covering
such additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(e) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit F
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(f) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower and the Guarantors, the corporate
authority for and the validity of the Financing Documents, and any other
matters relevant hereto, all in form and substance satisfactory to the
Agent; and
(g) receipt by the Agent of evidence satisfactory to it of the
payment of all principal and interest on any loans outstanding under and of
all accrued fees under, the Original Agreement.
On the Effective Date the Original Agreement will be automatically amended
and restated in its entirety to read as set forth herein. On and after the
Effective Date the rights and obligations of the parties hereto shall be
governed by this Amended and Restated Agreement; PROVIDED the rights and
obligations of the parties hereto with respect to the period prior to the
Effective Date shall continue to be governed by the provisions of the
Original Agreement. On the Effective Date, any Bank whose Commitment is
changed to zero shall cease to be a Bank party to this Agreement and all
accrued fees and other amounts payable under this Agreement for the account
of such Bank shall be due and payable on such date; PROVIDED that the
provisions of Section 9.03 of this Agreement shall continue to inure to the
benefit of each such Bank.
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The Notes delivered to each Bank under the Original Agreement shall be
canceled and Notes under this Amended and Restated Agreement shall be given
in substitution therefor. Each Bank shall promptly after the Effective Date
deliver to the Borrower for cancellation the Note delivered to such Bank
under the Original Agreement. The Agent shall promptly notify the Borrower
and each Bank of the effectiveness of this Amended and Restated Agreement,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. BORROWINGS. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in the Financing Documents (except (x) in the case of a Refunding
Borrowing and (y) in the case of any other Borrowing, solely if on the date
of such Borrowing, the Borrower's senior unsecured long-term debt is rated,
without third-party credit enhancement, A- or higher by S&P and A3 or
higher by Moody's, the representations and warranties set forth in Section
4.04(c) as to any matter which has theretofore been disclosed in writing by
the Borrower to the Banks) shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Borrowing as to the facts specified in
clauses (b), (c) and (d) of this Section.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly incorporated, validly existing and in good standing under
the laws of Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by each Obligor of
the Financing Documents to which it is a party are within its corporate
powers, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of its certificate of
incorporation or by-laws or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid
and binding agreement of the Borrower and the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower, in each case enforceable against the
Borrower in accordance with its terms. When executed and delivered in
accordance with this Agreement, the Subsidiary Guarantee Agreement will
constitute a valid and binding agreement of each of the Obligors enforceable
against such Obligor in accordance with its terms.
SECTION 4.04. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1995 and the related
consolidated statements of operations and cash flows for the fiscal year then
ended, reported on by Deloitte & Touche, L.L.P. and set forth in the
Borrower's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their
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consolidated results of operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of September 30, 1996 and the related
unaudited consolidated statements of operations and cash flows for the nine
months then ended, set forth in the Borrower's Latest Form 10-Q, a copy of
which has been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such nine
month period (subject to normal year-end adjustments).
(c) Since September 30, 1996 there has been no material adverse
change in the business, financial position, results of operations or
prospects of the Borrower.
SECTION 4.05. LITIGATION.
(a) Except for actions, suits or proceedings (i) described in the
Borrower's 1995 Form 10-K and the Borrower's Latest Form 10-Q or (ii)
commenced after the date of this Agreement and disclosed in writing to the
Banks (which disclosure may be included in the reports furnished to the Banks
pursuant to Section 5.01(f) and (g)), there is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official an adverse decision
in which might materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Borrower and
its Consolidated Subsidiaries taken as a whole.
(b) Since the date of the Borrower's Latest Form 10-Q, there has
been no change in the status of the actions, suits and proceedings described
therein which materially and adversely affects the business, financial
position, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
(c) There is no action, suit or proceeding pending against, or to
the knowledge of the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or any
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governmental body, agency or official which in any manner questions the
validity or enforceability of any Financing Document.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each Plan. No member
of the ERISA Group has (i) sought a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the
Internal Revenue Code or (iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. ENVIRONMENTAL MATTERS. In the ordinary course of
its business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital
or operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required
to achieve or maintain compliance with environmental protection standards
imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat, any costs or liabilities in
connection with off-site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including employees, and
any related costs and expenses). On the basis of this review, and based upon
conditions of which the Borrower has knowledge and upon its estimates of the
costs of compliance with and/or remediation mandated by Environmental Laws,
the Borrower has reasonably concluded that Environmental Laws are unlikely to
have a material adverse effect on the business, financial condition, results
of operations or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
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SECTION 4.08. TAXES. All United States federal income tax returns
and all other material tax returns which are required to be filed by or in
respect of the Borrower or any Subsidiary have been filed by either (i) the
WAII Group, (ii) the Borrower or a Subsidiary thereof (other than a member of
the WAII Group) or (iii) Litton in a consolidated or combined return which
incorporated the Borrower and its Subsidiaries (other than the WAII Group),
and all taxes due pursuant to such returns or pursuant to any assessment
received in respect thereof have been paid. United States federal income tax
returns covering the Borrower and its Subsidiaries have been examined and
closed through the fiscal year ended July 28, 1985.
SECTION 4.09. MATERIAL SUBSIDIARIES. Each of the Borrower's
Material Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and
has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
SECTION 4.10. NOT AN INVESTMENT COMPANY. Neither the Borrower nor
any Guarantor is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.11. USE OF PROCEEDS. The proceeds of the loans under
this Agreement will be used by the Borrower for general corporate purposes,
including acquisitions and stock repurchases. None of such proceeds will be
used in violation of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
SECTION 4.12. FULL DISCLOSURE. All information heretofore
furnished by the Borrower or any Guarantor to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower or any Guarantor to the Agent or any Bank will be, true and accurate
in all material respects on the date as of which such information is stated
or certified. The Borrower has disclosed to the Banks in writing any and all
facts which materially and adversely affect or may affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a
whole, or the ability of any Obligor to perform its obligations under this
Agreement or any other Financing Document.
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ARTICLE V
COVENANTS
The Borrower agrees that, from and after the Effective Date for so
long as any Bank has any Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated financial statements in the form then
required to be filed with the Securities and Exchange Commission on Form
10-K or its then equivalent, all reported on by independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
financial statements in the form then required to be filed with the
Securities and Exchange Commission on Form 10-Q or its then equivalent, all
certified (subject to normal year-end audit adjustments) by the chief
financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.05 to 5.07, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
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(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements whether
anything has come to their attention to cause them to believe that any
Default existed on the date of such statements;
(e) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate
of the chief financial officer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the Securities
and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Material Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Material Plan has given or is
required to give notice of any such reportable event, a copy of the notice
of such reportable event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer, any Material Plan, a copy
of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to
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terminate any Material Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice
of withdrawal from any Material Plan pursuant to Section 4063 of ERISA,
a copy of such notice; or (vii) fails to make any payment or
contribution to any Material Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any Material Plan or
Benefit Arrangement which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required
or proposes to take;
(i) forthwith, notice of any change of which the Borrower becomes
aware in the rating by any Rating Agency (as defined in the Pricing
Schedule) of the Borrower's long-term debt; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE.
(a) The Borrower will keep, and will cause each Subsidiary to
keep, all property useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Borrower or in such Subsidiary's own
name) with financially sound and responsible insurance companies, insurance
on all their respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are usually insured
against in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Banks, upon
request from the Agent, information presented in reasonable detail as to the
insurance so carried.
SECTION 5.03. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Borrower will continue, and
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will cause each Material Subsidiary to continue, to engage in business of the
same general type as now conducted by the Borrower and its Subsidiaries, and
will preserve, renew and keep in full force and effect, and will cause each
Material Subsidiary to preserve, renew and keep in full force and effect
their respective existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; PROVIDED
that nothing in this Section 5.03 shall prohibit (i) the merger of a
Subsidiary into the Borrower or the merger or consolidation of a Subsidiary
with or into another Person if the corporation surviving such consolidation
or merger is a Subsidiary and if, in each case, after giving effect thereto,
no Default shall have occurred and be continuing or (ii) the termination of
the existence of any Subsidiary if the Borrower in good faith determines that
such termination is in the best interest of the Borrower and is not
materially disadvantageous to the Banks.
SECTION 5.04. COMPLIANCE WITH LAWS. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
SECTION 5.05. LEVERAGE RATIO. The Leverage Ratio will at no time
exceed 2.75 to 1.0. For purposes of this Section 5.05, "Leverage Ratio"
means, at any date, the ratio of Consolidated Debt at such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date.
SECTION 5.06. MAINTENANCE OF CERTAIN OPERATIONS. The Borrower
will at all times maintain direct or indirect ownership of 80% of the Equity
Securities of WAII. The Borrower will not sell more than 35% (in cumulative
book value) of the assets of its Western Atlas Industrial Automation Systems
business segment.
SECTION 5.07. LIMITATION ON SUBSIDIARY DEBT. The aggregate
outstanding principal amount of Debt of Subsidiaries of the Borrower
(exclusive of Debt owing to the Borrower or another Subsidiary) shall at no
time exceed 15% of Consolidated Tangible Net Assets.
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SECTION 5.08. NEGATIVE PLEDGE. The Borrower will not, and will
not permit any Consolidated Subsidiary to, create, assume or suffer to exist
any Lien securing Debt or Derivatives Obligations on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $20,000,000;
(b) any Lien existing on the assets of any Person at the time such
Person becomes a Consolidated Subsidiary;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the purchase price or cost
of construction of such asset, PROVIDED that such Lien attaches to such
asset within 270 days after the acquisition or completion of
construction and commencement of full operations thereof;
(d) any Lien on any asset of any Person existing at the time such
Person is acquired by, merged into or consolidated with the Borrower or
a Consolidated Subsidiary;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, PROVIDED that such Debt is not
increased and is not secured by any additional assets;
(g) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $20,000,000; and
(h) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any
time outstanding not exceeding 10% of Consolidated Net Worth.
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SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or any
substantial part of the assets of the Borrower and its Subsidiaries, taken as
a whole, to any other Person; PROVIDED that the Borrower may merge with
another Person if the Borrower is the surviving corporation and, after giving
effect thereto, no Default exists.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower (i) shall fail to pay when due any principal of
any Loan or (ii) shall fail to pay any interest on any Loan, any fees or
any other amount payable hereunder within five days after the due date
thereof;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.05 through 5.09, inclusive;
(c) any Obligor shall fail to observe or perform any covenant or
agreement contained in any Financing Document (other than those covered
by clause (a) or (b) above) for 30 days after notice thereof has been
given to such Obligor by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
(or deemed made) by any Obligor in any Financing Document or in any
certificate, financial statement or other document delivered pursuant to
any Financing Document shall prove to have been incorrect in any
material respect when made (or deemed made) or delivered;
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Financial Obligations when due or within any
applicable grace period;
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(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (with the
giving of appropriate notice if required) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to authorize any of
the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Material Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer, any Material
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Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must
be terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment obligation
in excess of $10,000,000;
(j) a judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower or any Material
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days;
(k) a Change of Control shall occur; or
(l) the Subsidiary Guarantee Agreement shall cease to be a legal,
valid, binding and enforceable obligation of any Guarantor (otherwise
than in accordance with the terms thereof), or any Guarantor shall so
assert in writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Borrower declare the Notes (together with
accrued interest thereon) to be, and the Notes (together with accrued interest
thereon) shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; PROVIDED that in the case of any of the Events of
Default specified in clause (g) or (h) above with respect to any Obligor,
without any notice to any Obligor or any other act by the Agent or any Bank, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Obligors.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to an
Obligor under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Financing Documents as are delegated to the
Agent by the terms thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under the Financing Documents as
any other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and Morgan Guaranty Trust Company of New York and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth in the Financing Documents.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default, except as expressly
provided in Article VI.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of its
affiliates nor any of the directors, officers, agents or employees of the
foregoing shall be liable for any action taken or not taken by it or them in
connection herewith (i) with the consent or at the request of the Required Banks
or (ii) in the absence of its or their own gross negligence or willful
misconduct. Neither the Agent nor any of its affiliates nor any of the
directors, officers, agents or employees of the foregoing shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any
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Obligor; (iii) the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness or genuineness of the Financing Documents or any
other instrument or writing furnished in connection herewith. The Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with the Financing Documents or
any action taken or omitted by such indemnitees thereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent, subject to
the approval of the Borrower. If no successor Agent shall have been so
appointed by the Required Banks, with the approval of the Borrower, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a Bank, if any Bank is willing to
accept such appointment, and in any event shall be a commercial bank organized
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of its appointment as Agent hereunder by a
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successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After
any retiring Agent's resignation hereunder as Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent.
SECTION 7.09. AGENT'S FEES. The Borrower shall pay to the Agent
for its own account fees in the amounts and at the times previously agreed
upon between the Borrower and the Agent.
SECTION 7.10. CO-AGENTS. (a) Nothing in this Agreement shall
impose upon any Co-Agent, in such capacity, any duty or responsibility
whatsoever.
(b) The Borrower shall pay to each Co-Agent for its own account
fees in the amounts and at the times previously agreed upon between the
Borrower and such Co-Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the Agent
that the Adjusted CD Rate or the London Interbank Offered Rate, as
the case may be, as determined by the Agent will not adequately and
fairly reflect the cost to such Banks of funding their CD Loans or
Euro-Dollar Loans, as the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks
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to make CD Loans or Euro-Dollar Loans, as the case may be, shall be
suspended. Unless the Borrower notifies the Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for which a Notice
of Borrowing has previously been given that it elects not to borrow on such
date, (i) if such Fixed Rate Borrowing is a Committed Borrowing, such
Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money Market
LIBOR Loans comprising such Borrowing shall bear interest for each day from
and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
SECTION 8.02. ILLEGALITY. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans and such Bank shall so notify
the Agent, the Agent shall forthwith give notice thereof to the other Banks
and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist,
the obligation of such Bank to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section 8.02, such
Bank shall designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so specify in
such notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
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SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or
after (x) the date hereof, in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related Money
Market Quote, in the case of any Money Market Loan, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or
its Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding (i) with
respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement with respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.15), special deposit,
insurance assessment (excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on
any Bank (or its Applicable Lending Office) or on the United States market
for certificates of deposit or the London interbank market any other
condition affecting its Fixed Rate Loans, its Note or its obligation to make
Fixed Rate Loans and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of making or maintaining
any Fixed Rate Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any
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change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent) as a consequence
of such Bank's obligations hereunder to a level below that which such Bank
(or its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 15 days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction; PROVIDED that the
Borrower shall not be liable for any such amounts attributable to a period
more than three months prior to the date of notice by such Bank to the
Borrower of its intention to seek compensation under this subsection (b).
(c) Each Bank will promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not,
in the judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section, setting
forth the additional amount or amounts to be paid to it hereunder and the
basis of calculation thereof, shall be conclusive in the absence of manifest
error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. TAXES. (a) Any and all payments by the Borrower to
or for the account of any Bank or the Agent hereunder or under any Note shall
be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges and withholdings,
and all liabilities with respect thereto, EXCLUDING, in the case of each Bank
and the Agent, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank or the Agent (as
the case may be) is organized or any political subdivision thereof and, in
the case of each Bank, taxes imposed on its income, and franchise or
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similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Bank or the Agent, (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 8.04) such Bank or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges
or similar levies which arise from any payment made hereunder or under any
Note or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes and Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 8.04) paid by such Bank or the Agent (as the case
may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within 15 days from the date such Bank or the Agent (as the case may be)
makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each
other Bank, and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Bank remains lawfully able to do so),
shall provide the Borrower with Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying
55
<PAGE>
that such Bank is entitled to benefits under an income tax treaty to which
the United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Bank at the time
such Bank first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.04(a).
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the form required pursuant to Section 8.04(d), if
any (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which a form originally was required to
be provided), such Bank shall not be entitled to indemnification under
Section 8.04(a) with respect to Taxes imposed by the United States; PROVIDED,
HOWEVER, that should a Bank, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes.
(f) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.04, then such Bank
will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue
if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its CD Loans or Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as CD Loans
or Euro-Dollar Loans, as the case may be, shall be made instead as Base
Rate Loans
56
<PAGE>
(on which interest and principal shall be payable contemporaneously
with the related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the
case may be, has been repaid, all payments of principal which would
otherwise be applied to repay such Fixed Rate Loans shall be
applied to repay its Base Rate Loans instead.
SECTION 8.06. SUBSTITUTION OF BANK. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04, the
Borrower shall have the right, with the assistance of the Agent, to seek a
mutually satisfactory substitute bank or banks (which may be one or more of
the Banks) to purchase the Note and assume the Commitment of such Bank.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, facsimile transmission or similar writing) and shall be given to
such party: (x) in the case of the Borrower or the Agent, at its address or
facsimile or telex number set forth on the signature pages hereof, (y) in the
case of any Bank, at its address or facsimile or telex number set forth in
its Administrative Questionnaire or (z) in the case of any party, such other
address or facsimile or telex number as such party may hereafter specify for
the purpose by notice to the Agent and the Borrower. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other means, when
delivered at the address specified in this Section; PROVIDED that notices to
the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege under any Financing Document
shall operate as a waiver thereof nor shall any single or partial exercise
57
<PAGE>
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies therein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall
pay (i) all out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in connection with the
preparation and administration of the Financing Documents, any waiver or
consent thereunder or any amendment thereof or any Default or alleged Default
thereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent or any Bank, including fees and disbursements of
outside counsel (or, in lieu thereof, the allocated cost of in-house
counsel), in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents
and employees of the foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party
thereto) brought or threatened relating to or arising out of the Financing
Documents, or any actual or proposed use of proceeds of Loans hereunder;
PROVIDED that no Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee's own gross negligence or willful misconduct.
SECTION 9.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; PROVIDED that nothing in
58
<PAGE>
this Section shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes. Each of the Borrower and the Guarantors
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower or
such Guarantor, as the case may be, in the amount of such participation.
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Agent or any Co-Agent are
affected thereby, by the Agent or such Co-Agent); PROVIDED that no such
amendment or waiver shall, unless signed by all the Banks, (i) except as
contemplated by Section 2.16, increase or decrease the Commitment of any Bank
(except for a ratable decrease in the Commitments of all Banks) or subject
any Bank to any additional obligation, (ii) reduce the principal of, accrued
interest on or rate of interest on any Loan or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder or for any scheduled termination of any Commitment
or (iv) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section
or any other provision of the Financing Documents.
SECTION 9.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in up to 45% of
its Commitment or in any or all of its Loans. In the event of any such grant
by a Bank of a participating interest to a Participant, whether or not upon
notice to the Borrower
59
<PAGE>
and the Agent, such Bank shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement;
PROVIDED that such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 9.05 without the consent of
the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits
of Section 2.15 and Article VIII with respect to its participating interest.
An assignment or other transfer which is not permitted by subsection (c) or
(d) below shall be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance with this subsection
(b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to
a Commitment of not less than $5,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit G hereto executed by such
Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Borrower (which shall not be unreasonably withheld) and the
Agent; PROVIDED that if an Assignee is an affiliate of such transferor Bank,
no such consent shall be required; PROVIDED FURTHER that such assignment may,
but need not, include rights of the transferor Bank in respect of outstanding
Money Market Loans; and PROVIDED FURTHER that if an Assignee is another Bank,
such consent shall not be unreasonably withheld. Upon execution and delivery
of such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the
consummation of any
60
<PAGE>
assignment pursuant to this subsection (c), the transferor Bank, the Agent
and the Borrower shall make appropriate arrangements so that, if required, a
new Note is issued to the Assignee. In connection with any such assignment,
the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances.
SECTION 9.07. COLLATERAL. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
SECTION 9.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each of the Borrower and the Guarantors
hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State court
sitting in New York City for purposes of all legal proceedings arising out of
or relating to the Financing Documents or the transactions contemplated
thereby. Each of the Borrower and the Guarantors irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
61
<PAGE>
SECTION 9.09. COUNTERPARTS; INTEGRATION. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT, THE CO-AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
62
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
WESTERN ATLAS INC.
By: /s/ LORI J. SEGALE
----------------------------
Title: Treasurer
360 North Crescent Drive
Beverly Hills, California 90210
Telex number:
Telecopy number: (310)888-2848
<PAGE>
COMMITMENTS
$51,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ROBERT BOTTAMEDI
----------------------------
Title: Vice President
CO-AGENTS
---------
$32,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ GINA M. WEST
----------------------------
Title: Vice President
$32,000,000 THE BANK OF NEW YORK
By: /s/ CRAIG RETHMEYER
----------------------------
Title: Vice President
$32,000,000 THE CHASE MANHATTAN BANK
By: /s/ MARY E. CAMERON
----------------------------
Title: Vice President
$32,000,000 CIBC INC.
By: /s/ DANIEL H. HOM
----------------------------
Title: Director,
CIBC Wood Gundy Securities Corp., as Agent
<PAGE>
COMMITMENTS
- -----------
CO-AGENTS
---------
$32,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Gary S. Gage
--------------------------------------
Title: Senior Vice President
$32,000,000 NATIONSBANK OF TEXAS, N.A.
By: /s/ Patrick Delaney
--------------------------------------
Title: Senior Vice President
$32,000,000 WELLS FARGO BANK, N.A.
By: /s/ Kathleen S. Barnes / Gene Fuentes
--------------------------------------
Title: Vice President / Assistant Vice
President
PARTICIPANTS
------------
$22,000,000 BANK OF HAWAII
By: /s/ J. Lawrence Hall
--------------------------------------
Title: Vice President
$22,000,000 CREDIT SUISSE FIRST BOSTON
By: /s/ David J. Worthington
--------------------------------------
Title: Managing Director
By: /s/ Deborah A. Shea
--------------------------------------
Title: Associate
<PAGE>
COMMITMENTS
PARTICIPANTS
------------
$22,000,000 DRESDNER BANK A.G., NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: /s/ Christopher E. Sarisky
--------------------------------------
Title: Assistant Treasurer
By: /s/ Thomas J. Nadramia
--------------------------------------
Title: Vice President
$22,000,000 MELLON BANK, N.A.
By: /s/ Lawrence C. Ivey
--------------------------------------
Title: Vice President
$22,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Michelle D. Griffin
--------------------------------------
Title: Vice President
$15,000,000 TORONTO DOMINION (TEXAS), INC.
By: /s/ Frederic B. Hawley
--------------------------------------
Title: Vice President
$0 UNION BANK OF SWITZERLAND, LOS ANGELES
BRANCH, acting through Houston Agency
By: /s/ Kelly Boots
--------------------------------------
Title: Assistant Vice President
By: /s/ W. Benson Vance
--------------------------------------
Title: Assistant Vice President
66
<PAGE>
_________________
Total Commitments
$400,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: /s/ Robert Bottamedi
--------------------------------------
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Diana Imhof
Telex number: 177615
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for
any day are the respective percentages set forth below in the applicable row
under the column corresponding to the Status that exists on such day:
- -----------------------------------------------------------------------------
Level Level Level Level Level Level Level
Status I II III IV V VI VII
- -----------------------------------------------------------------------------
Euro-Dollar Margin .115% .13% .17% .21% .24% .35% .50%
- -----------------------------------------------------------------------------
CD Margin .24% .255% .295% .335% .365% .475% .625%
- -----------------------------------------------------------------------------
Facility Fee Rate .06% .07% .08% .09% .11% .15% .25%
- -----------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the
following meanings:
"D&P" means Duff & Phelps Credit Rating Co.
"Level I Status" exists at any date if, at such date, the
Borrower's long-term debt is rated AA-/Aa3 or higher by at least two Rating
Agencies.
"Level II Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated A+/A1 or A/A2 or higher by at least two
Rating Agencies and (ii) Level I Status does not exist at such date.
"Level III Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated A-/A3 or higher by at least two Rating
Agencies and (ii) neither Level I Status nor Level II Status exists at such
date.
"Level IV Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB+/Baa1 or higher by at least two Rating
Agencies and (ii) none of Level I Status, Level II Status or Level III Status
exists at such date.
"Level V Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB/Baa2 or higher by at least two Rating
Agencies and (ii) none of Level I Status, Level II Status, Level III Status
or Level IV Status exists at such date.
<PAGE>
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB-/Baa3 or higher by at least two Rating
Agencies and (ii) none of Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status exists at such date.
"Level VII Status" exists at any date, if at the close of business
on such date, none of Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status or Level VI exists.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Rating Agencies" means D&P, Moody's and S&P.
"S&P" means Standard & Poor's Ratings Services, and its successors.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status, Level VI
Status or Level VII Status exists at any date.
The credit ratings to be utilized for purposes of determining a
Status hereunder are those assigned to the senior unsecured long-term debt of
the Borrower without third-party credit enhancement, and any rating assigned
to any other debt of the Borrower shall be disregarded; PROVIDED that if at
any time the Borrower's senior unsecured long-term debt is rated by exactly
two Rating Agencies and the ratings assigned to such debt by such two Rating
Agencies are more than one full rating category apart, Status shall be
determined based on a rating one category higher than the lower of such two
ratings (E.G., if the S&P rating is A+, the Moody's rating is Baa1 and there
is no D&P rating, then Level III Status shall exist); PROVIDED FURTHER that
if at any time the Borrower's senior unsecured long-term debt, without third
party credit enhancement, is not rated by at least two Rating Agencies, then
Status shall be Level VII Status. The rating in effect at any date is that in
effect at the close of business on such date.
2
<PAGE>
EXHIBIT A
NOTE
New York, New York
March 19, 1997
For value received, Western Atlas Inc., a Delaware corporation (the
"Borrower"), promises to pay to the order of _________________ (the "Bank"),
for the account of its Applicable Lending Office, the unpaid principal amount
of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the last day of the Interest Period relating
to such Loan. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for
in the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Morgan Guaranty Trust Company of New York,
60 Wall Street, New York, New York.
Each Loan made by the Bank, the type and maturity thereof, and all
repayments of the principal thereof, shall be recorded by the Bank and, if
the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to
each Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; PROVIDED that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
or any Guarantor hereunder or under any other Financing Document.
This note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of March 19, 1997 among the Borrower, the banks
parties thereto and Morgan Guaranty Trust Company of New York, as Agent, and
Bank of America National Trust and Savings Association, The Bank of New York,
The Chase Manhattan Bank, CIBC Inc., The First National Bank of Chicago,
NationsBank of Texas, N.A., and Wells Fargo Bank, N.A., as Co-Agents (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
WESTERN ATLAS INC.
By
--------------------------------
Title:
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- -------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2
<PAGE>
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Morgan Guaranty Trust Company of New York
From: Western Atlas Inc. (the "Borrower")
Re: Amended and Restated Credit Agreement (as amended from time to time,
the "Credit Agreement") dated as of March 19, 1997 among the Borrower,
the Banks parties thereto and Morgan Guaranty Trust Company of New
York, as Agent, and Bank of America National Trust and Savings
Association, The Bank of New York, The Chase Manhattan Bank, CIBC
Inc., The First National Bank of Chicago, NationsBank of Texas, N.A.
and Wells Fargo Bank, N.A., as Co-Agents
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT* INTEREST PERIOD**
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
- ---------------------------
* Amount must be $10,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 14 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
WESTERN ATLAS INC.
By________________________
Title:
<PAGE>
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Western Atlas Inc. (the "Borrower")
Pursuant to Section 2.03 of the Amended and Restated Credit
Agreement (as amended from time to time, the "Credit Agreement") dated as of
March 19, 1997 among the Borrower, the Banks parties thereto and the
undersigned, as Agent, and Bank of America National Trust and Savings
Association, The Bank of New York, The Chase Manhattan Bank, CIBC Inc., The
First National Bank of Chicago, NationsBank of Texas, N.A. and Wells Fargo
Bank, N.A., as Co-Agents, we are pleased on behalf of the Borrower to invite
you to submit Money Market Quotes to the Borrower for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
- ---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.]
[9:30 A.M.] (New York City time) on [date].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
<PAGE>
EXHIBIT D
FORM OF MONEY MARKET QUOTE
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
60 Wall Street
New York, New York 10260-0060
Attention:
Re: Money Market Quote to
Western Atlas Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
- --------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $____________.]**
__________
* As specified in the related Invitation.
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the Amended and Restated Credit Agreement (as amended from time to
time, the "Credit Agreement") dated as of March 19, 1997 among the
Borrower, the Banks parties thereto and yourselves, as Agent, and Bank
of America National Trust and Savings Association, The Bank of New
York, The Chase Manhattan Bank, CIBC Inc., The First National Bank of
Chicago, NationsBank of Texas, N.A. and Wells Fargo Bank, N.A., as Co-
Agents, irrevocably obligates us to make the Money Market Loan(s) for
which any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to them in the
Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 14 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
(notes continued on following page)
2
<PAGE>
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000
of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
3
<PAGE>
EXHIBIT E
OPINION OF COUNSEL FOR THE
BORROWER AND THE GUARANTORS
March 19, 1997
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I am the chief legal officer of Western Atlas Inc. (the "Borrower")
and have acted in that capacity in connection with the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of March 19, 1997 among
the Borrower, the banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Agent, and Bank of America National
Trust and Savings Association, The Bank of New York, The Chase Manhattan
Bank, CIBC Inc., The First National Bank of Chicago, NationsBank of Texas,
N.A. and Wells Fargo Bank, N.A., as Co-Agents. Terms defined in the Credit
Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted
such other investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
2. The execution, delivery and performance by each Obligor of the
Financing Documents to which it is a
<PAGE>
party are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of its certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or
any of its Subsidiaries or result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement
of the Borrower, the Notes constitute valid and binding obligations of the
Borrower and the Subsidiary Guarantee Agreement is a valid and binding
agreement of each Obligor.
4. (a) Except for actions, suits or proceedings described in the
Borrower's 1995 Form 10-K and the Borrower's Latest Form 10-Q, there is no
action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Borrower or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official,
in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, taken as a whole.
(b) Since the date of the Borrower's Latest Form 10-Q, there
has been no change in the status of the actions, suits and proceedings
described therein which materially and adversely affects the business,
financial position, results of operations or prospects of the Borrower and
its Consolidated Subsidiaries, considered as a whole.
(c) There is no action, suit or proceeding pending against, or
to the best of my knowledge threatened against or affecting, the Borrower or
any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official which in any manner questions the validity of any
Financing Document.
5. Each of the Borrower's Material Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and
2
<PAGE>
approvals required to carry on its business as now conducted.
I am a member of the Bar of the State of California, and the
foregoing opinion is limited to the laws of the State of California, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America. Inasmuch as the Credit Agreement and the Notes are
governed by the law of the State of New York, I have assumed for purposes of
the foregoing opinion that such law is the same as the law of the State of
California.
Very truly yours,
3
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[Dated the Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
We have participated in the preparation of the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of March 19, 1997 among
Western Atlas Inc., a Delaware corporation (the "Borrower"), the banks listed
on the signature pages thereof (the "Banks") and Morgan Guaranty Trust
Company of New York, as Agent (the "Agent"), and Bank of America National
Trust and Savings Association, The Bank of New York, The Chase Manhattan
Bank, CIBC Inc., The First National Bank of Chicago, NationsBank of Texas,
N.A. and Wells Fargo Bank, N.A., as Co-Agents, and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.01(e) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted
such other investigations of fact and law as we have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the
Financing Documents are within the Borrower's corporate powers and have been
duly authorized by all necessary corporate action.
<PAGE>
2. The Credit Agreement and the Subsidiary Guarantee Agreement
constitute valid and binding agreements of the Borrower and each Note
constitutes a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
3. The Subsidiary Guarantee Agreement constitutes a valid and
binding agreement of each Guarantor, enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of
equity.
4. The documents delivered to the Agent by the Borrower pursuant
to Section 3.01 of the Credit Agreement are substantially responsive to the
requirements of said Section.
In giving the opinion set forth in paragraph 3 above, we have, with
your permission, assumed that the execution, delivery and performance by each
Guarantor of the Subsidiary Guarantee Agreement are within such Guarantor's
corporate powers and have been duly authorized by all necessary corporate
action.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law
of the State of Delaware. In giving the foregoing opinion, (i) we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect and (ii) the opinion expressed
in paragraph 3 above is subject to the effect, if any, of Section 548 of the
United States Bankruptcy Code and any comparable provisions of applicable
state law.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), WESTERN ATLAS INC. (the "Borrower")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Credit Agreement dated as of March 19,
1997 among the Borrower, the Assignor and the other Banks party thereto, as
Banks, and the Agent and Bank of America National Trust and Savings
Association, The Bank of New York, The Chase Manhattan Bank, CIBC Inc., The
First National Bank of Chicago, NationsBank of Texas, N.A. and Wells Fargo
Bank, N.A., as Co-Agents (as amended from time to time, the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Committed Loans to the Borrower in an aggregate principal
amount at any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of
its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
<PAGE>
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement and
the other Financing Documents to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and assumes all of
the obligations of the Assignor under the Credit Agreement to the extent of
the Assigned Amount, including the purchase from the Assignor of the
corresponding portion of the principal amount of the Committed Loans made by
the Assignor outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Borrower and the Agent and the
payment of the amounts specified in Section 3 required to be paid on the date
hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Credit
Agreement and the other Financing Documents with a Commitment in an amount
equal to the Assigned Amount, and (ii) the Commitment of the Assignor shall,
as of the date hereof, be reduced by a like amount and the Assignor released
from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them.
It is understood that commitment and/or facility fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof in respect of the Assigned Amount are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Credit Agreement or any other
Financing Document which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent of
such other party's interest therein and shall promptly pay the same to such
other party.
SECTION 4. CONSENT OF THE BORROWER AND THE AGENT. This Agreement
is conditioned upon the consent of the Borrower and the Agent, pursuant to
Section 9.06(c) of the Credit Agreement. The execution of this Agreement by
the Borrower and the Agent is evidence of this consent. Pursuant to Section
9.06(c) the Borrower agrees to execute
2
<PAGE>
and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Borrower or any Guarantor, or the validity and
enforceability of the obligations of the Borrower or any Guarantor in respect
of any Financing Document. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower and each Guarantor.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
3
<PAGE>
WESTERN ATLAS INC.
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By___________________________
Title:
4
<PAGE>
EXHIBIT H
AMENDED AND RESTATED
SUBSIDIARY GUARANTEE AGREEMENT
dated as of
March 19, 1997
among
Western Atlas Inc.
The Guarantors Referred to Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.01 Definitions................................ 2
ARTICLE II
Guarantees
2.01 The Guarantees............................. 3
2.02 Guarantees Unconditional................... 3
2.03 Limit of Liability......................... 4
2.04 Discharge; Reinstatement in
Certain Circumstances.................... 4
2.05 Waiver..................................... 4
2.06 Subrogation................................ 5
2.07 Stay of Acceleration....................... 5
ARTICLE III
COVENANT OF THE BORROWER
3.01 Additional Guarantors...................... 5
ARTICLE IV
MISCELLANEOUS
4.01 Notices.................................... 5
4.02 No Waiver.................................. 6
4.03 Amendments and Waivers..................... 6
4.04 Governing Law; Submission to
Jurisdiction; Waiver of a
Jury Trial............................... 6
4.05 Successors and Assigns..................... 6
4.06 Counterparts; Effectiveness................ 7
- ----------------
* The Table of Contents is not a part of this Agreement.
<PAGE>
AMENDED AND RESTATED
SUBSIDIARY GUARANTEE AGREEMENT
AGREEMENT dated as of March 19, 1997 among Western Atlas Inc., a
Delaware corporation (the "Borrower"), each of the Guarantors listed on the
signature pages hereof under the caption "Guarantors" and each Person that
shall, at any time after the date hereof, become a "Guarantor" hereunder
(collectively, the "Guarantors") and Morgan Guaranty Trust Company of New
York, as Agent.
WHEREAS, the Borrower has entered into a Credit Agreement dated as
of December 23, 1993, amended and restated as of December 22, 1994 and
amended and restated as of March 19, 1997 (as the same may be amended from
time to time, the "Credit Agreement") among the Borrower, the banks parties
thereto, Morgan Guaranty Trust Company of New York, as Agent, and Bank of
America National Trust and Savings Association, The Bank of New York, The
Chase Manhattan Bank, CIBC Inc., The First National Bank of Chicago,
NationsBank of Texas, N.A. and Wells Fargo Bank, N.A., as Co-Agents, pursuant
to which the Borrower is entitled, subject to certain conditions, to borrow
up to $400,000,000;
WHEREAS, the Borrower and the Guarantors have entered into an
Amended and Restated Subsidiary Guarantee Agreement dated as of December 22,
1994 (the "Original Guarantee"), which Original Guarantee amended and
restated that certain Subsidiary Guarantee Agreement dated as of December 23,
1993 among the Borrower and the Guarantors;
WHEREAS, the Credit Agreement provides, among other things, that
one condition to the effectiveness of the Commitments thereunder is the
execution and delivery by the Borrower and the Guarantors of an amendment and
restatement of the Original Guarantee substantially in the form of this
Agreement;
WHEREAS, in conjunction with the transactions contemplated by the
Credit Agreement and in consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, and in order to induce
the Banks, the Agent and the Co-Agents to enter into the Credit Agreement and
to make Loans thereunder, the Guarantors are willing to guarantee the
obligations of the Borrower under the Credit Agreement and the Notes;
<PAGE>
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree that the Original Guarantee is hereby
amended and restated to read in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as therein defined. In
addition the following terms, as used herein, have the following meanings:
"Guaranteed Obligations" means (i) all obligations of the Borrower
in respect of principal of and interest on the Loans and the Notes, (ii) all
other amounts payable by the Borrower under the Credit Agreement or the Notes
and (iii) all renewals or extensions of the foregoing, in each case whether
now outstanding or hereafter arising. The Guaranteed Obligations shall
include, without limitation, any interest, costs, fees and expenses which
accrue on or with respect to any of the foregoing, whether before or after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of any one or more than one of the
Borrower and the Guarantors, and any such interest, costs, fees and expenses
that would have accrued thereon or with respect thereto but for the
commencement of such case, proceeding or other action.
"Material Subsidiary" means (i) each Material Subsidiary (as
defined in the Credit Agreement) of the Borrower, (ii) each Subsidiary of the
Borrower that the Required Banks have by notice to the Borrower designated as
a "Material Subsidiary" for purposes hereof and (iii) all direct or indirect
successors in interest to any of the entities described in clauses (i) and
(ii) of this definition (including, without limitation, by way of merger or
consolidation with, or acquisition of all or a substantial part of the assets
of, any such entity).
2
<PAGE>
ARTICLE II
Guarantees
SECTION 2.01. THE GUARANTEES. Subject to Section 2.03, the
Guarantors hereby jointly, severally, unconditionally and irrevocably
guarantee to the Banks, the Agent and the Co-Agents and to each of them, the
due and punctual payment of all Guaranteed Obligations as and when the same
shall become due and payable, whether at maturity, by declaration or
otherwise, according to the terms thereof. In case of failure by the
Borrower punctually to pay the indebtedness guarantied hereby, the
Guarantors, subject to Section 2.03, hereby jointly, severally,
unconditionally and irrevocably agree to cause such payment to be made
punctually as and when the same shall become due and payable, whether at
maturity or by declaration or otherwise, and as if such payment were made by
the Borrower.
SECTION 2.02. GUARANTEES UNCONDITIONAL. The obligations of each
Guarantor under this Article II shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any other Obligor under any
Financing Document, by operation of law or otherwise;
(b) any modification or amendment of or supplement to any
Financing Document;
(c) any modification, amendment, waiver, release, impairment,
non-perfection or invalidity of any direct or indirect security, or
of any guarantee or other liability of any third party, for any
obligation of any other Obligor under any Financing Document;
(d) any change in the corporate existence, structure or
ownership of any other Obligor, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any other
Obligor or its assets or any resulting release or discharge of any
obligation of any other Obligor contained in any Financing Document;
(e) the existence of any claim, set-off or other rights which
any Obligor may have at any time against any other Obligor, the
Agent, any Co-Agent, any Bank or any other Person, whether or not
arising in connection
3
<PAGE>
with the Financing Documents; PROVIDED that nothing herein shall
prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
any other Obligor for any reason of any Financing Document, or any
provision of applicable law or regulation purporting to prohibit
the payment by any other Obligor of the principal of or interest on
any Note or any other amount payable by any other Obligor under any
Financing Document; or
(g) any other act or omission to act or delay of any kind by
any other Obligor, the Agent, any Co-Agent, any Bank or any other
Person or any other circumstance whatsoever that might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the obligations of any Guarantor under this Article II.
SECTION 2.03. LIMIT OF LIABILITY. Each Guarantor shall be liable
under this Agreement only for amounts aggregating up to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions
of any applicable state law.
SECTION 2.04. DISCHARGE; REINSTATEMENT IN CERTAIN Circumstances.
Each Guarantor's obligations under this Article II shall remain in full force
and effect until the Commitments are terminated and the principal of and
interest on the Notes and all other amounts payable by the Borrower under the
Financing Documents shall have been paid in full. The obligations of any
Guarantor under this Article II may only be terminated with the consent of
all of the Banks. If at any time any payment of the principal of or interest
on any Note or any other amount payable by the Borrower under any Financing
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of any other Obligor or otherwise,
each Guarantor's obligations under this Article II with respect to such
payment shall be reinstated at such time as though such payment had become
due but had not been made at such time.
SECTION 2.05. WAIVER. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken
by any Person against any other Obligor or any other Person.
4
<PAGE>
SECTION 2.06. SUBROGATION. Upon making any payment hereunder, the
Guarantor making such payment shall be subrogated to the rights of the payee
against the Borrower with respect to such payment; PROVIDED that such
Guarantor shall not enforce any payment by way of subrogation until all
amounts of principal of and interest on the Notes and all other amounts
payable by the Borrower under the Credit Agreement shall have been paid in
full.
SECTION 2.07. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Borrower under the Financing
Documents is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms
of the Financing Documents shall nonetheless be payable by each Guarantor
hereunder forthwith on demand by the Agent made at the request of the
Required Banks.
ARTICLE III
COVENANT OF THE BORROWER
SECTION 3.01. ADDITIONAL GUARANTORS. The Borrower represents and
warrants that, as of the date of this Agreement, the Guarantors set forth on
the signature pages hereof constitute all Material Subsidiaries. The
Borrower agrees, within ten days after any Person hereafter becomes a
Material Subsidiary, to cause such Person to become a Guarantor hereunder,
and in connection therewith to deliver such opinions of counsel and other
documents relating to such Guarantor and its obligations hereunder as the
Agent may reasonably request.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. NOTICES. Unless otherwise specified herein, all
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission or similar writing) and shall be
given to such party at its address or facsimile number set forth on the
signature pages hereof (or, in the case of any Guarantor as to which no such
address or facsimile number is so set forth, to it at the address or
facsimile number of the Borrower set forth on the signature pages hereof) or
such other address or facsimile number as
5
<PAGE>
such party may hereafter specify for the purpose by notice to the Agent.
Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile transmission number specified in or pursuant to this Section 4.01,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iii) if
given by any other means, when delivered at the address specified in this
Section 4.01.
SECTION 4.02. NO WAIVER. No failure or delay by the Agent, any
Co-Agent or any Bank in exercising any right, power or privilege under this
Agreement or any other Financing Document shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein and therein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 4.03. AMENDMENTS AND WAIVERS. Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver
is in writing and is signed by the Borrower, each Guarantor and the Agent
with the prior written consent of the Required Banks under the Credit
Agreement; PROVIDED that the second sentence of Section 2.04 and the PROVISO
in Section 4.05 of this Agreement may only be amended with the consent of all
of the Banks.
SECTION 4.04. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
A JURY TRIAL. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York. Each of the Guarantors hereby
agrees to be bound by each provision of the Credit Agreement which purports
to bind it, including without limitation Sections 8.04, 9.04, 9.08 and 9.10,
to the same extent as if it were a signatory party thereto.
SECTION 4.05. SUCCESSORS AND ASSIGNS. This Subsidiary Guarantee
is for the benefit of the Banks, the Agent and the Co-Agents and their
respective successors and assigns and in the event of an assignment of the
Loans, the Notes or other amounts payable under the Financing Documents, the
rights hereunder, to the extent applicable to the indebtedness so assigned,
shall be transferred with such indebtedness. All the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto
6
<PAGE>
and their respective successors and assigns; PROVIDED that no Guarantor shall
assign its rights and obligations hereunder without the consent of all of the
Banks.
SECTION 4.06. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original, and
all of which taken together shall constitute a single instrument, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when the Agent shall have
received a counterpart hereof signed by the Borrower, and one or more of the
Guarantors and when the Credit Agreement shall become effective in accordance
with its terms. Thereafter, upon execution and delivery of a counterpart of
this Agreement on behalf of any other Guarantor, this Agreement shall become
effective with respect to such Guarantor as of the date of such delivery.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Guarantee Agreement to be duly executed by their respective authorized
officers as of the date first above written.
WESTERN ATLAS INC.
By /s/ LORI J. SEGALE
-----------------------------------
Title: Treasurer
360 North Crescent Drive
Beverly Hills, California 90210
Telex number:
Telecopy number: (310) 888-2848
GUARANTORS
INTERMEC CORPORATION
By /s/ LORI J. SEGALE
-----------------------------------
Title: Treasurer
WESTERN ATLAS INTERNATIONAL, INC.
By /s/ LORI J. SEGALE
-----------------------------------
Title: Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ROBERT BOTTAMEDI
-----------------------------------
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Diana Imhof
Telex number: 177615
8
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