1
EXECUTION COPY
$500,000,000
FIVE-YEAR CREDIT AGREEMENT
among
T. ROWE PRICE ASSOCIATES, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
FLEET NATIONAL BANK,
as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 7, 2000
CHASE SECURITIES INC., as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.......................................................1
1.1 Defined Terms...................................................1
1.2 Other Definitional Provisions..................................13
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................................13
2.1 Commitments....................................................13
2.2 Procedure for Loan Borrowing...................................13
2.3 Fees...........................................................14
2.4 Termination or Reduction of Commitments........................14
2.5 Optional Prepayments...........................................14
2.6 Conversion and Continuation Options............................14
2.7 Limitations on Eurodollar Tranches.............................15
2.8 Interest Rates and Payment Dates...............................15
2.9 Computation of Interest and Fees...............................15
2.10 Inability to Determine Interest Rate..........................16
2.11 Pro Rata Treatment and Payments...............................16
2.12 Requirements of Law...........................................17
2.13 Taxes.........................................................18
2.14 Indemnity.....................................................19
2.15 Change of Lending Office......................................20
2.16 Replacement of Lenders........................................20
SECTION 3. REPRESENTATIONS AND WARRANTIES...................................20
3.1 Financial Condition............................................20
3.2 No Change......................................................21
3.3 Corporate Existence; Compliance with Law.......................21
3.4 Corporate Power; Authorization; Enforceable Obligations........21
3.5 No Legal Bar...................................................21
3.6 Litigation.....................................................21
3.7 No Default.....................................................22
3.8 Ownership of Property; Liens...................................22
3.9 Intellectual Property..........................................22
3.10 Taxes.........................................................22
3.11 Federal Regulations...........................................22
3.12 Labor Matters.................................................22
3.13 ERISA.........................................................22
3.14 Investment Company Act; Other Regulations.....................23
3.15 Use of Proceeds...............................................23
3.16 Environmental Matters.........................................23
3.17 Accuracy of Information, etc..................................24
3.18 Solvency......................................................24
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Page
SECTION 4. CONDITIONS PRECEDENT.............................................24
4.1 Conditions to Effectiveness....................................24
4.2 Conditions to Each Loan........................................25
SECTION 5. AFFIRMATIVE COVENANTS............................................25
5.1 Financial Statements...........................................26
5.2 Certificates; Other Information................................26
5.3 Payment of Tax Obligations.....................................27
5.4 Maintenance of Existence; Compliance...........................27
5.5 Maintenance of Property; Insurance.............................27
5.6 Inspection of Property; Books and Records; Discussions.........27
5.7 Notices........................................................27
5.8 Environmental Laws.............................................28
5.9 Subsidiary Guarantors..........................................28
SECTION 6. NEGATIVE COVENANTS...............................................29
6.1 Financial Condition Covenants..................................29
6.2 Indebtedness...................................................29
6.3 Liens..........................................................30
6.4 Fundamental Changes............................................31
6.5 Material Dispositions..........................................31
6.6 Transactions with Affiliates...................................31
6.7 Sales and Leasebacks...........................................31
6.8 Changes in Fiscal Periods......................................31
6.9 Lines of Business..............................................31
SECTION 7. EVENTS OF DEFAULT................................................32
SECTION 8. THE ADMINISTRATIVE AGENT.........................................34
8.1 Appointment....................................................34
8.2 Delegation of Duties...........................................34
8.3 Exculpatory Provisions.........................................34
8.4 Reliance by Administrative Agent...............................35
8.5 Notice of Default..............................................35
8.6 Non-Reliance on the Administrative Agent and Other Lenders.....35
8.7 Indemnification................................................36
8.8 The Administrative Agent in Its Individual Capacity............36
8.9 Successor Administrative Agent.................................36
SECTION 9. MISCELLANEOUS....................................................37
9.1 Amendments and Waivers.........................................37
9.2 Notices........................................................37
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Page
9.3 No Waiver; Cumulative Remedies.................................38
9.4 Survival of Representations and Warranties.....................38
9.5 Payment of Expenses and Taxes..................................38
9.6 Successors and Assigns; Participations and Assignments.........39
9.7 Adjustments; Set-off...........................................41
9.8 Counterparts...................................................41
9.9 Severability...................................................41
9.10 Integration...................................................42
9.11 GOVERNING LAW.................................................42
9.12 Submission To Jurisdiction; Waivers...........................42
9.13 Acknowledgments...............................................42
9.14 Confidentiality...............................................43
9.15 WAIVERS OF JURY TRIAL.........................................43
9.16 Group to Become a Party to this Agreement.....................43
ANNEX:
A Pricing Grid
SCHEDULES:
1.1 Commitments
6.2(c) Existing Indebtedness
6.3(f) Existing Liens
6.6 Certain Affiliate Transactions
EXHIBITS:
A Form of Guarantee Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E Form of Legal Opinion of Piper & Marbury
F Form of Exemption Certificate
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CREDIT AGREEMENT, dated as of June 7, 2000, among T.
ROWE PRICE ASSOCIATES, INC., a Maryland corporation (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), and THE CHASE MANHATTAN BANK, as
administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
terms listed in this Section 1.1 shall have the respective meanings set forth in
this Section 1.1.
"ABR": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Reference Lender as its prime
rate in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by the Reference Lender
in connection with extensions of credit to debtors); "Base CD Rate" shall mean
the sum of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is one
minus the C/D Reserve Percentage and (b) the C/D Assessment Rate; and
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Reference Lender from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. Any change
in the ABR due to a change in the Prime Rate, the Three-Month Secondary CD Rate
or the Federal Funds Effective Rate shall be effective as of the
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opening of business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to
which is based upon the ABR.
"Administrative Agent": The Chase Manhattan Bank,
together with its affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise. Notwithstanding the foregoing, for purposes of Section 6.6, no
Lender's status as a Lender shall result in such Lender (or any of its
Affiliates) being deemed to be an Affiliate of the Company or its Subsidiaries.
"Aggregate Exposure": with respect to any Lender at
any time, an amount equal to the amount of such Lender's Commitment then in
effect or, if the Commitments have been terminated, the amount of such Lender's
Loans then outstanding.
"Aggregate Exposure Percentage": with respect to any
Lender at any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Fee Rate": as set forth on the Pricing
Grid.
"Applicable Margin": as set forth on the Pricing
Grid; provided, that the Applicable Margin shall be 0.125% per annum higher than
the Applicable Margin otherwise applicable (a) until the date that is six months
after the Closing Date (regardless of utilization) and (b) at any time
thereafter when the aggregate outstanding principal amount of the Loans, when
added to the
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aggregate outstanding principal amount of "Loans" under the 364-Day Credit
Agreement, is greater than or equal to $300,000,000.
"Approved Fund": with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": an Assignment and
Acceptance, substantially in the form of Exhibit D.
"Assignor": as defined in Section 9.6(c).
"Attributable Debt": in respect of any
Sale/Leaseback, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the sole option of the lessor,
be extended. Such present value shall be calculated using a discount rate equal
to the rate of interest implicit in such transaction, determined in accordance
with GAAP.
"Available Commitment": as to any Lender at any time,
an amount equal to the excess, if any, of (a) such Lender's Commitment then in
effect over (b) such Lender's Loans then outstanding.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal
Reserve System of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the
Borrower as a date on which the Borrower requests the Lenders to make Loans
hereunder.
"Business": as defined in Section 3.16(b).
"Business Day": a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to close, provided, that with respect to notices and
determinations in connection with, and payments of
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principal and interest on, Eurodollar Loans, such day is also a day for trading
by and between banks in Dollar deposits in the interbank eurodollar market.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"C/D Assessment Rate": for any day as applied to any
ABR Loan, the annual assessment rate in effect on such day that is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within supervisory
subgroup "B" (or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. [Section Mark] 327.4 (or any successor provision) to
the FDIC (or any successor) for the FDIC's (or such successor's) insuring time
deposits at offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to
any ABR Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of the
Board as in effect from time to time) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Closing Date": the date on which the conditions
precedent set forth in Section 4.1 shall have been satisfied, which date is June
7, 2000.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment": as to any Lender, the obligation of
such Lender to make Loans in an aggregate principal amount not to exceed the
amount set forth under the heading "Commitment" opposite
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such Lender's name on Schedule 1.1 or in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount of the Total
Commitments is $500,000,000.
"Commitment Period": the period from and including
the Closing Date to the Termination Date.
"Commonly Controlled Entity": an entity, whether or
not incorporated, that is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group that includes the Company
and that is treated as a single employer under Section 414 of the Code.
"Company": (a) prior to the date on which Group
becomes a Loan Party, the Borrower, and (b) thereafter, Group.
"Compliance Certificate": a certificate duly executed
by a Responsible Officer substantially in the form of Exhibit B.
"Conduit Lender": any special purpose corporation
organized and administered by any Lender for the purpose of making Loans
hereunder otherwise required to be made by such Lender and designated by such
Lender in a written instrument, subject to the consent of the Administrative
Agent and the Borrower (such consent not to be unreasonably withheld or
delayed); provided, that the designation by any Lender of a Conduit Lender shall
not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any
such Loan, and the designating Lender (and not the Conduit Lender) shall have
the sole right and responsibility to deliver all consents and waivers required
or requested under this Agreement with respect to its Conduit Lender, and
provided, further, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.12, 2.13, 2.14 or 9.5 than the designating
Lender would have been entitled to receive in respect of the Loans made by such
Conduit Lender or (b) be deemed to have any Commitment hereunder.
"Confidential Information Memorandum": the
Confidential Information Memorandum dated March 2000 and furnished to certain
Lenders.
"Consolidated EBITDA": for any period, Consolidated
Net Income for such period plus, without duplication and to the extent reflected
as a charge in the statement of such Consolidated Net Income for such period,
the sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount and debt
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issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non- cash losses on sales of assets outside of the ordinary
course of business), and (f) any other non-cash charges, and minus, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income (except to the extent such interest
income exceeds interest expense for such period), (b) any extraordinary, unusual
or non-recurring income or gains (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business)
and (c) any other non-cash income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four
consecutive fiscal quarters (each, a "Reference Period") pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during such
Reference Period the Company or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (ii) if during such Reference
Period the Company or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition occurred on the first
day of such Reference Period. As used in this definition, "Material Acquisition"
means any acquisition of common stock of any Person resulting in such Person
becoming a Subsidiary or of assets comprising an operating unit of a business
that in any such case involves the payment of consideration by the Company and
its Subsidiaries in excess of $75,000,000; and "Material Disposition" means any
Disposition of property or series of related Dispositions of property (a) that
has a fair market value, or that yields gross proceeds to the Company or any of
its Subsidiaries, in excess of $75,000,000 and (b) that consists of either (i)
an operating unit of a business or (ii) all of the Capital Stock of a Subsidiary
or such portion of the Capital Stock of a Subsidiary as results in such entity
no longer constituting a Subsidiary or (if such entity was a consolidated
Subsidiary but remains a Subsidiary) no longer constituting a consolidated
Subsidiary.
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"Consolidated Interest Coverage Ratio": for any
period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense": for any period,
total interest expense (including that attributable to Capital Lease
Obligations) of the Company and its Subsidiaries for such period with respect to
all outstanding Indebtedness of the Company and its Subsidiaries (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Hedge Agreements
in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of
any period, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for such period.
"Consolidated Net Income": for any period, the
consolidated net income (or loss) of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Company or is merged into or consolidated
with the Company or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary of the Company) in which the Company or any of
its Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Company to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Consolidated Net Worth": at any date, all amounts
that would, in conformity with GAAP, be included on a consolidated balance sheet
of the Company and its Subsidiaries under stockholders' equity at such date
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Company and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"Continuing Directors": the directors of the
Borrower on the Closing Date, and each other director of the Company, if, in
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each case, such other director's nomination for election to the board of
directors of the Company is recommended by at least 66-2/3% of the then
Continuing Directors.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Default": any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Depositary Institution": any Person that is a bank,
savings and loan, savings bank, thrift institution, trust company or similar
financial institution.
"Disposition": with respect to any property, any
sale, lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollars" and "$": dollars in lawful currency of the
United States.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal fraction) of reserve requirements in effect on
such day (including basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, the rate
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per annum determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Dow Jones Markets screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Dow Jones Markets screen (or otherwise on such screen), the "Eurodollar Base
Rate" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Administrative Agent is offered Dollar deposits at or
about 11:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where its eurodollar
and foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurodollar Base Rate divided by (1.00 - Eurocurrency Reserve Requirements)
"Eurodollar Tranche": the collective reference to
Eurodollar Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Event of Default": any of the events specified in
Section 7, provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Facility Fee": as defined in Section 2.3(a).
"Federal Funds Effective Rate": for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day of such transactions received by the
Reference
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Lender from three federal funds brokers of recognized standing selected by it.
"Funding Office": the office of the Administrative
Agent specified in Section 9.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by written notice
to the Borrower and the Lenders.
"GAAP": generally accepted accounting principles in
the United States as in effect from time to time, except that for purposes of
Section 6.1, GAAP shall be determined on the basis of such principles in effect
on the date hereof and consistent with those used in the preparation of the most
recent audited financial statements referred to in Section 3.1. In the event
that any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrower and the Administrative
Agent agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Company's financial condition shall
be the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue to
be calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative functions
of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group": any Person formed for the purpose, among
other things, of directly owning all of the Capital Stock of the
Borrower.
"Guarantee Agreement": the Guarantee Agreement to be
executed and delivered by Group substantially in the form of Exhibit
15
A, as the same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing person or (b)
another Person (including any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith.
"Hedge Agreements": all interest rate swaps, caps or
collar agreements or similar arrangements dealing with interest rates or
currency exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Immaterial Subsidiaries": any one or more
Subsidiaries of the Company (other than the Borrower and any Subsidiary
Guarantor) as to which, in the aggregate, each of the (a) assets, (b) revenues
and (c) earnings before interest, taxes, depreciation and amortization
(excluding intercompany receivables and revenues that would be eliminated upon
consolidation in accordance
16
with GAAP) do not, at the time of determination (determined, in the case of
clauses (b) and (c), in respect of the most recent period of four consecutive
fiscal quarters of the Company for which the relevant financial information is
available), exceed 5% of the consolidated assets, consolidated revenues or
Consolidated EBITDA (excluding intercompany receivables and revenue that would
be eliminated upon consolidation in accordance with GAAP), respectively, of the
Company and its Subsidiaries at such time.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation
(provided that, if such Person has not assumed or otherwise become liable in
respect of such Indebtedness, such Indebtedness shall be deemed to be in an
amount equal to the fair market value of the property to which such Lien relates
as determined in good faith by such Person), and (j) for the purposes of
Sections 6.2 and 7(e) only, all obligations of such Person in respect of Hedge
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor. Notwithstanding anything to the contrary in this
definition, "Indebtedness" shall not include deposits held by a Subsidiary which
is a Depositary Institution.
17
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to
all rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the
last day of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period and (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period.
"Interest Period": as to any Eurodollar Loan, (a)
initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period
that would extend beyond the Termination Date; and
18
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Lenders": as defined in the preamble hereto;
provided, that unless the context otherwise requires, each reference herein to
the Lenders shall be deemed to include any Conduit Lender.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Guarantee
Agreement, any Subsidiary Guarantee Agreement and the Notes.
"Loan Parties": (a) the Borrower, (b) upon the
execution and delivery of the Guarantee Agreement, Group and (c) any
Subsidiary Guarantor.
"Material Acquisition": as defined in the definition
of "Consolidated EBITDA".
"Material Adverse Effect": a material adverse effect
on, (a) the business, operations, property or financial condition of the Company
and its Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"Material Disposition": as defined in the definition
of "Consolidated EBITDA".
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
19
"Multiemployer Plan": a Plan that is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.13(a).
"Non-U.S. Lender": as defined in Section 2.13(d).
"Notes": the collective reference to any promissory
note evidencing Loans.
"Obligations": the unpaid principal of and interest
on (including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of Hedge
Agreements, any affiliate of any Lender), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, any Hedge Agreement entered into with any Lender or any affiliate
of any Lender or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Total
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding).
20
"Permitted Acquisition": an acquisition described in
Section 4.2(c).
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan that is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pricing Grid": the pricing grid attached hereto as
Annex A.
"Properties": as defined in Section 3.16(a).
"Reference Lender": The Chase Manhattan Bank.
"Register": as defined in Section 9.6(d).
"Regulation U": Regulation U of the Board as in
effect from time to time.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or
.35 of PBGC Reg. [Section Mark] 4043.
"Required Lenders": at any time, the holders of more
than 50% of the Total Commitments then in effect or, if the Commitments have
been terminated, the Total Loans then outstanding.
"Requirement of Law": as to any Person, (a) any law,
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
and (b) solely as to the Company or any of its Subsidiaries, the Certificate of
Incorporation and By-laws or other organizational or governing documents of such
Person.
21
"Responsible Officer": the chief executive officer,
president or chief financial officer of the Company, but in any event, with
respect to financial matters, the principal accounting or chief financial
officer of the Company.
"Sale/Leaseback": as defined in Section 6.7.
"SEC": the Securities and Exchange Commission, any
successor thereto and any analogous Governmental Authority.
"Single Employer Plan": any Plan that is covered by
Title IV of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person,
means that, as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as of such
date, as such quoted terms are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its debts
as they mature. For purposes of this definition, (i) "debt" means liability on a
"claim", and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned,
or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
22
"Subsidiary Guarantee Agreement": any Guarantee
Agreement executed and delivered by a Subsidiary of the Borrower substantially
in the form of Exhibit A (with any changes reasonably requested by the
Administrative Agent to reflect such Person's status as a Subsidiary), as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": any Subsidiary party to a
Subsidiary Guarantee Agreement.
"Termination Date": June 7, 2005.
"Total Commitments": at any time, the aggregate
amount of the Commitments then in effect.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or
a Eurodollar Loan.
"United States": the United States of America.
"364-Day Credit Agreement": the 364-Day Credit
Agreement, dated as of June 7, 2000, among the Borrower, the lenders parties
thereto and The Chase Manhattan Bank, as administrative agent, as the same may
be amended, supplemented or otherwise modified from time to time.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents,
and any certificate or other document made or delivered pursuant hereto or
thereto, (i) accounting terms relating to the Company and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP, (ii) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation", (iii) the word "incur" shall be
construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words "incurred" and "incurrence" shall have
correlative meanings), and (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets
23
and properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make Loans to the Borrower
from time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding which does not exceed the amount of such Lender's
Commitment. During the Commitment Period the Borrower may use the Commitments by
borrowing, prepaying the Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Loans may from time to time
be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.6.
(b) The Borrower shall repay all outstanding Loans on
the Termination Date.
2.2 Procedure for Loan Borrowing. The Borrower may
borrow under the Commitments during the Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 12:00
Noon, New York City time, (a) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior
to the requested Borrowing Date, in the case of ABR Loans), specifying (i) the
amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date and
(iii) in the case of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Period therefor. Any
Loans made on the Closing Date shall initially be ABR Loans. Each borrowing
under the Commitments shall be in an amount equal to (x) in the case of ABR
Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Commitments are less than $1,000,000, such lesser amount) and (y) in
the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Upon receipt of
24
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on
the Borrowing Date requested by the Borrower in funds immediately available to
the Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3 Fees. (a) The Borrower agrees to pay to the
Administrative Agent a facility fee for distribution to each Lender (the
"Facility Fee") for the period from and including the Closing Date to the later
of (i) the Termination Date and (ii) the date on which all Loans shall have been
paid in full (such later date, the "Final Date"), computed at the Applicable Fee
Rate on the average daily amount of the Total Commitments (whether or not
utilized) (or, for any period after the Termination Date, on the average daily
aggregate outstanding amount of the Loans), payable quarterly in arrears on the
last day of each March, June, September and December and on the Final Date,
commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates previously agreed to in writing
by the Borrower and the Administrative Agent.
2.4 Termination or Reduction of Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction of Commitments shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective date thereof, the
aggregate, outstanding principal amount of the Loans would exceed the Total
Commitments. Any such reduction shall be in an amount equal to $5,000,000, or a
whole multiple of $1,000,000 in excess thereof, and shall reduce permanently the
Commitments then in effect.
2.5 Optional Prepayments. The Borrower may at any
time and from time to time prepay the Loans, in whole or in part, without
premium or penalty, upon irrevocable notice delivered to the Administrative
Agent at least three Business Days prior thereto in the case of Eurodollar Loans
and at least one Business Day prior thereto in the case of ABR Loans, which
notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar
25
Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.14. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of ABR Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Loans shall be in an aggregate principal amount of $5,000,000 or
a whole multiple of $1,000,000 in excess thereof.
2.6 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no ABR Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined in its or their
sole discretion not to permit such conversions. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan may be continued as such when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
26
2.7 Limitations on Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions and continuations of Eurodollar Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than five Eurodollar Tranches shall be outstanding at any one time.
2.8 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per
annum equal to the ABR.
(c) (i) If all or a portion of the principal amount
of any Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to ABR Loans plus 2%, in
each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant to paragraph (c)
of this Section shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) Interest
and fees payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
27
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error.
2.10 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period, the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z)
any outstanding Eurodollar Loans shall be converted, on the last day of the
then-current Interest Period, to ABR Loans. Until such notice has been withdrawn
by the Administrative Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
2.11 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower from the Lenders hereunder, each payment by the
Borrower on account of any Facility Fee and any reduction of the Commitments of
the Lenders shall be made pro rata according to the respective Percentages of
the relevant Lenders.
(b) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans then
held by the Lenders.
(c) All payments (including prepayments) to be made
by the Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as
28
received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the result
of such extension would be to extend such payment into another calendar month,
in which event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to such Loan, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been
notified in writing by the Borrower prior to the date of any payment being made
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such required
date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average
29
Federal Funds Effective Rate. Nothing herein shall be deemed to
limit the rights of the Administrative Agent or any Lender against
the Borrower.
2.12 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, or any Eurodollar
Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.13 and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other Loans by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii)shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the
cost to such Lender, by an amount that such Lender deems to
be material, of making, converting into, continuing or
maintaining Eurodollar Loans, or to reduce any amount
receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable.
If any Lender becomes entitled to claim any additional
amounts pursuant to this paragraph, it shall promptly notify
the Borrower (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
30
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction; provided that the
Borrower shall not be required to compensate a Lender pursuant to this paragraph
for any amounts incurred more than six months prior to the date that such Lender
notifies the Borrower of such Lender's intention to claim compensation therefor;
and provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such six-month period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts
payable pursuant to this Section submitted by any Lender to the Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. Such certificate shall show in reasonable detail the basis therefor. In
determining such amounts, each Lender will use averaging and attribution methods
which are reasonable. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.13 Taxes. (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative
31
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Borrower shall
not be required to increase any such amounts payable to any Lender with respect
to any Non-Excluded Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this Section including a
failure to comply otherwise excused by the last sentence of paragraph (d) or the
proviso of paragraph (e), unless such failure to comply results from any change
after the date such Lender becomes a Lender in any Requirement of Law or in the
interpretation or application thereof, or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non- Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes
are payable by the Borrower, as promptly as possible thereafter the Borrower
shall send to the Administrative Agent for its own account or for the account of
the relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S.
Person" as defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a statement substantially in the form of
Exhibit F and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption
32
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.14 Indemnity. The Borrower agrees to indemnify
each Lender and to hold each Lender harmless from any loss or expense that such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so
33
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. Such certificate shall show in reasonable detail the
basis therefor. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.15 Change of Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section
2.12 or 2.13(a) with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of the Borrower or the rights of
any Lender pursuant to Section 2.12 or 2.13(a).
2.16 Replacement of Lenders. The Borrower shall be
permitted to replace any Lender that (a) requests reimbursement for amounts
owing pursuant to Section 2.12 or 2.13(a) or (b) defaults in its obligation to
make Loans hereunder, with a replacement financial institution; provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
no action under Section 2.15 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 2.12 or 2.13(a), (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing
to such replaced Lender on or prior to the date of replacement, (v) the Borrower
shall be liable to such replaced Lender under Section 2.14 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last day
of the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably
34
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
9.6 (provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.12 or 2.13(a), as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans, the Company hereby represents
and warrants to the Administrative Agent and each Lender that:
3.1 Financial Condition. The audited consolidated
balance sheets of the Borrower and its consolidated Subsidiaries as at December
31, 1997, December 31, 1998 and December 31, 1999, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at March 31, 2000, and the
related unaudited consolidated statements of income and cash flows for the
three-month period ended on such date, present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). As of the date hereof, the Borrower and
its Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1999 to and
including the date hereof there has been no Disposition by the Borrower or any
of its consolidated Subsidiaries of any material part of its business or
property.
35
3.2 No Change. For the period from December 31, 1999
to the Closing Date, there has been no development, event or circumstance that
has had or could reasonably be expected to have a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each
Loan Party is each duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization. Except to the extent that any
of the following could not, in the aggregate, reasonably be expected to have
Material Adverse Effect, each of the Company and its Subsidiaries: (a) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (b) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (c) is in compliance with all Requirements of
Law.
3.4 Corporate Power; Authorization; Enforceable
Obligations. Each Loan Party has the corporate power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party and, in the case of the Borrower, to obtain Loans hereunder. At the time
of its execution, each Loan Party will have taken all necessary corporate action
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party and, in the case of the Borrower, to authorize the Loans on
the terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the Loans hereunder
or with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the Loan Documents. Upon its execution, each Loan Document
will have been duly executed and delivered on behalf of each Loan Party thereto.
This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and
performance of this Agreement and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of the Company or any of its Subsidiaries
and will not result in, or
36
require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation.
3.6 Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of their respective properties or revenues (a)
with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) that is reasonably likely to be
determined adversely to the Company or any of its Subsidiaries and that, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
3.7 No Default. Neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the
Company and its Subsidiaries has title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, except to the extent that failure to have
such title or leasehold interest could not reasonably be expected to have a
Material Adverse Effect.
3.9 Intellectual Property. Except as, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) the Company and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted; (b) no claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Company know of any
valid basis for any such claim; and (c) the use of Intellectual Property by the
Company and its Subsidiaries does not infringe on the rights of any Person.
3.10 Taxes. The Company and each of its Subsidiaries
has filed or caused to be filed all Federal and other material tax returns that
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
37
books of the Company or its Subsidiaries, as the case may be); except as
permitted by Section 6.3, no tax Lien has been filed.
3.11 Federal Regulations. No part of the proceeds of
any Loans, and no other Loans hereunder, will be used for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
3.12 Labor Matters. Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect: (a) there
are no strikes or other labor disputes against the Company or any of its
Subsidiaries pending or, to the knowledge of the Company, threatened; (b) hours
worked by and payment made to employees of the Company and its Subsidiaries have
not been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due from the
Company or any of its Subsidiaries on account of employee health and welfare
insurance have been paid or accrued as a liability on the books of the Company
or the relevant Subsidiary.
3.13 ERISA. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (a) neither a
Reportable Event (except as described in clause (c) below), nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, (b)
each Plan has complied with the applicable provisions of ERISA and the Code and
(c) no termination of a Single Employer Plan has occurred other than the
standard termination of a defined benefit plan in 1997, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount; provided that this sentence shall not apply at any time
when there are no Single Employer Plans. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Company nor any Commonly
Controlled Entity would
38
become subject to any material liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan in which the
Company or any Commonly Controlled Entity is a participant, if any, is in
Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. No
Loan Party is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. No Loan Party is subject to regulation under any Requirement of Law
(other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
3.15 Use of Proceeds. The proceeds of the Loans
shall be used for general corporate purposes, including to finance
acquisitions.
3.16 Environmental Matters. Except as, in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect:
(a) the facilities and properties owned, leased or
operated by the Company or any of its Subsidiaries (the
"Properties") do not contain, and to the knowledge of the
Company have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or
under circumstances that constitute or constituted a
violation of, or could reasonably be expected to give rise
to liability of the Company or any of its Subsidiaries
under, any Environmental Law;
(b) neither the Company nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged
violation, non-compliance, liability or potential
liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the
Properties or the business operated by the Company or any
of its Subsidiaries (the "Business"), nor does the Company
have knowledge or reason to believe that any such notice
will be received or is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in
violation of, or in a manner or to a location that could
reasonably be expected to give rise to liability of the
Company or any of its Subsidiaries under, any
39
Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to
liability of the Company or any of its Subsidiaries under,
any applicable Environmental Law;
(d) no judicial proceeding or governmental or
administrative action is pending or, to the knowledge of
the Company, threatened, under any Environmental Law to
which the Company or any Subsidiary is or will be named as
a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Properties
or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations
of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that could
reasonably be expected to give rise to liability of the
Company or any of its Subsidiaries under Environmental
Laws;
(f) the Properties and all operations at the Properties
are in compliance, and have in the last five years been in
compliance, with all applicable Environmental Laws; and
(g) neither the Company nor any of its Subsidiaries has
assumed any liability of any other Person under
Environmental Laws.
3.17 Accuracy of Information, etc. All factual
information (taken as a whole) contained in this Agreement, any other Loan
Document, the Confidential Information Memorandum or any other document,
certificate or written statement furnished by or on behalf of any Loan Party to
the Administrative Agent or the Lenders, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan Documents
is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of any Loan Party in writing to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
40
date as of which such information is dated or certified and not incomplete by
omitting to state any fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided; provided, however, that
the projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the relevant Loan Party to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. As of the date hereof,
there is no fact known to any Loan Party that could reasonably be expected to
have a Material Adverse Effect that has not been expressly disclosed herein, in
the other Loan Documents, in the Confidential Information Memorandum or in any
other documents, certificates and statements furnished to the Administrative
Agent and the Lenders for use in connection with the transactions contemplated
hereby and by the other Loan Documents.
3.18 Solvency. Each Loan Party is, and after giving
effect to the incurrence of all Indebtedness and obligations being incurred in
connection herewith will be and will continue to be, Solvent.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness
of this Agreement is subject to the satisfaction of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall
have received this Agreement, executed and delivered by
the Administrative Agent, the Borrower and each Person
listed on Schedule 1.1.
(b) Fees. The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including
the reasonable fees and expenses of legal counsel), on or
before the Closing Date. All such amounts will be paid
with proceeds of Loans made on the Closing Date and will
be reflected in the funding instructions given by the
Borrower to the Administrative Agent on or before the
Closing Date; provided, however, that if the Closing Date
occurs before the first Loan is
41
made hereunder, then all such amounts will be paid in
immediately available funds on the Closing Date by the
Borrower.
(c) Financial Statements. The Lenders shall have
received the financial statements referred to in Section
3.1.
(d) Closing Certificate. The Administrative Agent shall
have received a certificate of the Borrower, dated the
Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.
(e) Legal Opinions. The Administrative Agent shall have
received a signed legal opinion from Piper Marbury Rudnick
& Wolfe LLP, counsel to the Borrower, substantially in the
form of Exhibit E.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any
date (including its initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in
or pursuant to the Loan Documents shall be true and
correct on and as of such date as if made on and as of
such date, except for any representation and warranty
which is expressly made as of an earlier date, which
representation and warranty shall have been true and
correct as of such earlier date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after
giving effect to the Loans requested to be made on such
date and the use of proceeds thereof.
(c) Permitted Acquisitions. In the case of any Loan
used to finance a Material Acquisition (as defined in the
definition of "Consolidated EBITDA"), (i) the
Administrative Agent shall have received a certificate
from the Company demonstrating pro forma compliance with
Section 6.1 in reasonable detail and (ii) in the case of
any such acquisition involving a Person that has publicly
traded Capital Stock, such acquisition shall have been
approved by the Board of Directors of such Person.
42
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect, or any Loan or other amount is owing to any Lender
or the Administrative Agent hereunder, the Company shall and shall cause each of
its Subsidiaries to:
5.1 Financial Statements. Furnish to the
Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Company, a
copy of the audited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements
of income and of cash flows for such year, setting forth
in each case in comparative form the figures for the
previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising
out of the scope of the audit, by PricewaterhouseCoopers
LLP or other independent certified public accountants of
nationally recognized standing (it being understood that
this requirement may be satisfied through the delivery of
reports filed with the SEC on Form 10-K);
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Company, the
unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements
of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a
Responsible Officer as being prepared in accordance with
GAAP (it being understood that this requirement may be
satisfied through the delivery of reports filed with the
SEC on Form 10-Q); and
(c) after Group becomes a Loan Party, as soon as
available, but in any event not later than 45 days after
43
the end of each of the first three quarterly periods of
each fiscal year of the Borrower and 90 days after the end
of the fourth quarterly period of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated
statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a
Responsible Officer as being prepared in accordance with
GAAP.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (e), to the
relevant Lender):
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a certificate of
the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained
that any Default or Event of Default had occurred and was
continuing as of the date of such certificate, except as
specified in such certificate;
(b) concurrently with the delivery of any financial
statements pursuant to Section 5.1, (i) a certificate of a
Responsible Officer stating that such Responsible Officer
has obtained no knowledge of any Default or Event of
Default which has occurred and is continuing as of the
date of such certificate except as specified in such
certificate and (ii) a Compliance Certificate containing
all information and calculations necessary for determining
compliance by the Company and its Subsidiaries with the
provisions of this Agreement referred to therein as of the
last day of the fiscal quarter or fiscal year of the
Company, as the case may be;
(c) within 45 days after the end of each fiscal
quarter of the Company, a narrative discussion and
44
analysis of the financial condition and results of
operations of the Company and its Subsidiaries for such
fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal
quarter, as compared to the comparable periods of the
previous year (it being understood that this requirement
may be satisfied through the delivery of reports filed
with the SEC on Form 10-K or 10-Q, as the case may be);
(d) within five days after the same are sent, copies of
all financial statements and reports that the Company
sends to the holders of any class of its debt securities
or public equity securities and, within five days after
the same are filed, copies of all financial statements and
reports that any Loan Party may make to, or file with, the
SEC; and
(e) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
5.3 Payment of Tax Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material tax obligations of whatever nature, except where
the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Company or its Subsidiaries, as
the case may be.
5.4 Maintenance of Existence; Compliance. (a)
Preserve, renew and keep in full force and effect its corporate existence
except, in the case of the Loan Parties, as otherwise expressly permitted by
Section 6.4, and except, in the case of any Subsidiary (other than the
Borrower), to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; (b) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep
all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted and (b) maintain
45
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability) as are usually insured against in the same
general area by companies engaged in the same or a similar business.
5.6 Inspection of Property; Books and Records;
Discussions. (a) Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and activities
and (b) permit representatives of the Administrative Agent and any Lender to
visit and inspect, under guidance of officers of the Company or such Subsidiary,
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the Company and its Subsidiaries with officers and employees of the Company
and its Subsidiaries and with its independent certified public accountants;
provided, that, unless a Default or an Event of Default has occurred and is
continuing, no Lender may exercise its rights under this sentence more than once
in any fiscal year of the Company (it being understood that this proviso does
not apply to the Administrative Agent).
5.7 Notices. Promptly give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of
Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Company or any of its
Subsidiaries of which any Responsible Officer has
knowledge, or (ii) litigation, investigation or proceeding
that may exist at any time between the Company or any of
its Subsidiaries and any Governmental Authority, that in
either case, if not cured or if adversely determined, as
the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding filed against the
Company or any of its Subsidiaries (i) in which the amount
involved is $10,000,000 or more and not covered by
insurance, (ii) in which injunctive or similar relief is
sought or (iii) which relates to any Loan Document; and
46
(d) the following events, as soon as possible and in
any event within 30 days after a Responsible Officer of
the Company knows thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC
or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or
the termination, Reorganization or Insolvency of, any
Plan.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company or the relevant Subsidiary proposes
to take with respect thereto.
5.8 Environmental Laws. Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect: (a) comply
with, and take reasonable actions to ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply with and maintain, and take reasonable actions to ensure that all tenants
and subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws and (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws, provided, that the
Company or the relevant Subsidiary shall not be precluded from appealing or
otherwise legally challenging orders and directives that it reasonably believes
to exceed the requirements of Environmental Laws.
5.9 Subsidiary Guarantors. In the case of any fiscal
quarter during which a Material Acquisition or Material Disposition occurs,
substantially concurrently with the next delivery of financial statements
covering such fiscal quarter pursuant to Section 5.1, (a) deliver to the
Administrative Agent a calculation in reasonable detail showing the percentage
of Consolidated EBITDA for the four-quarter period ending with such fiscal
quarter contributed by Group, the Borrower and any existing Subsidiary
Guarantors (determined as if such Subsidiary Guarantors had been Subsidiary
Guarantors at the beginning of such period) and (b) if such percentage is 50% or
less, cause one or more Subsidiaries designated by the Borrower to execute and
deliver Subsidiary Guarantee
47
Agreements to the extent necessary such that, if such Subsidiaries had been
Subsidiary Guarantors at the beginning of such period, such percentage would
have exceeded 50%.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any Loan or other amount is owing to any Lender
or the Administrative Agent hereunder, the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Company to exceed 2.50 to 1.00.
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Company to be less than 4.00 to 1.00.
6.2 Indebtedness. Create, issue, incur, assume,
become liable in respect of or suffer to exist any Indebtedness,
except:
(a) Indebtedness of any Loan Party pursuant to any
Loan Document;
(b) intercompany Indebtedness owing to the Company or
any of its Subsidiaries;
(c) Indebtedness outstanding on the date hereof and
listed on Schedule 6.2(c) or disclosed in the financial
statements described in Section 3.1 and any refinancings,
refundings, renewals or extensions thereof (without
increasing, or shortening the maturity of, the principal
amount thereof);
(d) Indebtedness secured by Liens permitted by
Section 6.3(k) in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding;
(e) Hedge Agreements that are entered into for
hedging purposes and not speculative purposes;
48
(f) (i) Indebtedness secured only by a Lien described
in Section 6.3(l), incurred on a loan-to-value basis no
lower than is customary for similar financings, and (ii)
Attributable Debt resulting from a Sale/Leaseback
permitted by Section 6.7 (other than Attributable Debt
incurred pursuant to paragraph (g) below), in an aggregate
principal amount for all Indebtedness incurred pursuant to
this paragraph not to exceed $125,000,000; and
(g) Indebtedness in addition to and without limitation
on the Indebtedness otherwise permitted by this Section
6.2, provided that (i) on the date of incurrence of such
Indebtedness and after giving effect on a pro forma basis
to the incurrence of such Indebtedness (and to the
concurrent retirement of any other Indebtedness in
connection therewith), no Default or Event of Default
would exist hereunder (including pursuant to Section 6.1
determined, in the case of Section 6.1(b) as if such
incurrence (and any such retirement) had occurred on the
first day of the relevant period of four consecutive
fiscal quarters and (ii) on the date of incurrence of any
Indebtedness pursuant to this paragraph that is either (x)
secured (which shall include any Attributable Debt not
incurred pursuant to paragraph (f)(ii) above) or (y)
incurred by a Person that is not a Loan Party ("Specified
Indebtedness"), the aggregate outstanding principal amount
of all Specified Indebtedness outstanding after such
incurrence (and after any concurrent retirement of other
Indebtedness) shall not exceed an amount equal to 10% of
Consolidated Net Worth, determined as of the last day of
the most recently ended fiscal quarter prior to such date
for which financial statements have been delivered
pursuant to Section 5.1.
6.3 Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet due or that are being
contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are
maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP;
49
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business that are not overdue for a
period of more than 30 days or that are being contested in
good faith by appropriate proceedings;
(c) Liens consisting of pledges or deposits in
connection with workers' compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business that do not in any case materially detract from
the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on
Schedule 6.3(f), securing Indebtedness permitted by
Section 6.2(c), provided that no such Lien is spread to
cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not
increased;
(g) any interest or title of a lessor under any lease
entered into by the Company or any of its Subsidiaries in
the ordinary course of its business and covering only the
assets so leased;
(h) Liens arising out of the existence of judgments
or awards not constituting an Event of Default;
(i) statutory and common law landlord's Liens under
leases to which the Company or any of its Subsidiaries
is a party;
(j) Liens which constitute rights of setoff of a
customary nature or banker's Liens with respect to amounts
on deposit, whether arising by operation of law or by
contract, in connection with arrangements entered into
with Depository Institutions in the ordinary course of
business;
50
(k) Liens on property acquired pursuant to an
acquisition, or on property of a Subsidiary of the Company
in existence at the time such Subsidiary is acquired,
provided that (i) the aggregate outstanding principal
amount of Indebtedness secured by such Liens does not
exceed $25,000,000 and (ii) such Liens are not incurred in
connection with, or in contemplation or anticipation of,
such acquisition and do not attach to any other property
of the Company or any of its Subsidiaries;
(l) any Lien resulting from (i) Indebtedness incurred
pursuant to Section 6.2(f) secured only by real property
(together with related furniture, fixtures and equipment
and other items of personal property related solely to
such real property) or (ii) a Sale/Leaseback permitted by
Section 6.7; and
(m) Liens not otherwise permitted by this Section
securing Indebtedness incurred pursuant to Section 6.2(g)
that is permitted by said Section to be secured.
6.4 Fundamental Changes. In the case of any Loan
Party, (a) liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), (b) consolidate or merge with or into any other Person, other than
a consolidation or merger in which such Loan Party is the surviving corporation
or a merger solely for the purpose of re-incorporating such Loan Party in
another jurisdiction, provided that, in each case, no Default or Event of
Default shall exist at the time of, or immediately after giving effect to, such
consolidation or merger (including, on a pro forma basis, pursuant to Section
6.1), or (c) Dispose of, directly or indirectly, all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, to any other
Person.
6.5 Material Dispositions. Consummate a Material
Disposition unless (a) except in the case of distributions of assets to
shareholders of the Company, the consideration received at the time thereof is
at least equal to the fair market value of the property subject to such Material
Disposition as determined in good faith by the Board of Directors of the Company
(including as to the value of non-cash consideration) and (b) no Default or
Event of Default shall exist at the time of, or immediately after giving effect
to, such Material Disposition (including, on a pro forma basis, pursuant to
Section 6.1).
6.6 Transactions with Affiliates. Enter into any
transaction, including any purchase, sale, lease or exchange of property, the
rendering of any service or the payment of any management, advisory or similar
51
fees, with any Affiliate (other than the Company or any Subsidiary) unless (a)
such transaction is upon fair and reasonable terms no less favorable to the
Company or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person that is not an Affiliate or
(b) such transaction is pursuant to an agreement in effect on the Closing Date
and, in the case of any material transaction, described on Schedule 6.6, or any
amendment thereto or any replacement agreement thereof so long as such amendment
or replacement agreement is not more disadvantageous to the Lenders in any
material respect than the original agreement in effect on the Closing Date.
6.7 Sales and Leasebacks. Enter into any arrangement
(a "Sale/Leaseback") with any Person providing for the leasing by the Company or
any Subsidiary of real or personal property that has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or such
Subsidiary unless, after giving effect thereto, the aggregate outstanding amount
of Attributable Debt (other than Attributable Debt incurred pursuant to Section
6.2(g)), when added to the aggregate outstanding principal amount of
Indebtedness incurred pursuant to Section 6.2(f)(i), does not exceed
$125,000,000.
6.8 Changes in Fiscal Periods. Permit the fiscal
year of the Company to end on a day other than December 31 or change the
Company's method of determining fiscal quarters.
6.9 Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
that are complimentary or reasonably related thereto, including any type of
financial services business, except for unrelated businesses so long as the cost
of each investment by the Company or its Subsidiary in any such unrelated
business does not exceed, when aggregated with the cost of all other such
investments, an amount equal to 10% of the Company's assets, on a consolidated
basis, determined as of the last day of the most recently ended fiscal quarter
prior to such investment for which financial statements have been delivered
pursuant to Section 5.1.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any
52
Loan, or any other amount payable hereunder or under any
other Loan Document, within five days after any such
interest or other amount becomes due in accordance with
the terms hereof; or
(b) any representation or warranty made or deemed made
by any Loan Party herein or in any other Loan Document or
that is contained in any certificate, document or
financial or other statement furnished by it at any time
under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in
any material respect on or as of the date made or deemed
made; or
(c) any Loan Party shall default in the observance or
performance of any agreement contained in Section 5.4(a)
(with respect to the Loan Parties only), Section 5.7(a) or
Section 6 of this Agreement;
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this
Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a period of
30 days after notice to the Borrower from the
Administrative Agent or the Required Lenders; or
(e) The Company or any of its Subsidiaries shall (i)
default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date
with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any
other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or
a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable;
provided, that a default, event or
53
condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events
or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate
$50,000,000; or
(f) (i) The Company or any of its Subsidiaries (other
than Immaterial Subsidiaries) shall commence any case,
proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to
it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets or
the Company or any of its Subsidiaries (other than
Immaterial Subsidiaries) shall make a general assignment
for the benefit of its creditors; or (ii) there shall be
commenced against the Company or any of its Subsidiaries
(other than Immaterial Subsidiaries) any case, proceeding
or other action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief
or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the
Company or any of its Subsidiaries (other than Immaterial
Subsidiaries) any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of
its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) shall
take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v)
the Company or any of its Subsidiaries (other than
Immaterial Subsidiaries) shall generally not, or shall be
unable
54
to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section
302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of the Company or any
Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination
of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title
IV of ERISA, (v) the Company or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such
events or conditions, if any, could reasonably be expected
to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries involving
in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has
acknowledged coverage) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) Group shall fail, concurrently with its becoming
the owner of any Capital Stock of the Borrower, to deliver
an executed Guarantee Agreement, together with documents
of the type described in Sections 4.1(d) and (e) with
respect to Group and the Guarantee Agreement; or
(j) (i) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) (other than Group) shall become, or
obtain
55
rights (whether by means or warrants, options or
otherwise) to become, the "beneficial owner" (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 35% of the
outstanding common stock of the Company; (ii) the board of
directors of the Company shall cease to consist of a
majority of Continuing Directors; or (iii) after it
becomes a Loan Party, Group shall cease to own and
control, beneficially and of record, directly, 100% of
each class of Capital Stock of the Borrower free and clear
of all Liens;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or
56
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan Party a
party thereto to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative
57
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
8.5 Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on the Administrative Agent and
Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by the Administrative Agent hereafter taken,
including any review of the affairs of a Loan Party or any affiliate of a Loan
Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also
58
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Loan Party or any affiliate of a Loan Party that may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent not reimbursed
by any Loan Party and without limiting the obligation of the Loan Parties to do
so), ratably according to its Aggregate Exposure Percentage in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentage immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the Administrative Agent's gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder.
8.8 The Administrative Agent in Its Individual
Capacity. The Administrative Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business
59
with any Loan Party as though it were not an Agent. With respect to its Loans
made or renewed by it the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 10 days' notice to
the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall (unless an Event of Default under Section
7(a) or under Section 7(f) with respect to the Borrower shall have occurred and
be continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement,
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 9.1. The Required Lenders and each Loan Party to the relevant Loan
Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party to the relevant Loan Document may, from
time to time, (a) enter into written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this
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Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates, which waiver shall
be effective with the consent of the Required Lenders) and (y) that any
amendment or modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of interest or fees
for purposes of this clause (i)) or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Lender's
Commitment, in each case without the written consent of each Lender directly
affected thereby; (ii) eliminate or reduce the voting rights of any Lender under
this Section 9.1 without the written consent of such Lender; (iii) reduce any
percentage specified in the definition of Required Lenders, (iv) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents without the written consent of
all Lenders; (v) amend, modify or waive any provision of Section 8 without the
written consent of the Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Loan Parties, the Lenders, the Administrative
Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of
61
the Lenders, or to such other address as may be hereafter notified by
the respective parties hereto:
The Borrower:
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attention: Joseph P. Croteau
Telecopy: 410-547-6824
Telephone: 410-345-2384
The Administrative Agent:
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Laura Rebecca
Telecopy: 212-552-7490
Telephone: 212-552-7253
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
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9.5 Payment of Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all its
out-of-pocket costs and expenses incurred in connection with the syndication of
the Facility, the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with statements
with respect to the foregoing to be submitted to the Borrower prior to the
Closing Date (in the case of amounts to be paid on the Closing Date) and from
time to time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an
"Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Company or any of its Subsidiaries or any of the
Properties and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified
63
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Company agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 9.5 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Borrower pursuant to this Section 9.5
shall be submitted at the address of the Borrower set forth in Section 9.2, or
to such other Person or address as may be hereafter designated by the Borrower
in a written notice to the Administrative Agent. The agreements in this Section
9.5 shall survive repayment of the Loans and all other amounts payable
hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent, all future holders of
the Loans and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may,
without the consent of the Borrower, in accordance with applicable law, at any
time sell to one or more banks, financial institutions or other entities (each,
a "Participant") participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or
64
consent requires the approval of the Lender from which the Participant purchased
its Participation pursuant to clauses (i) through (v) of Section 9.1. The
Borrower agrees that if amounts outstanding under this Agreement and the Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and
2.14 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of Section 2.13, such Participant shall have complied with the requirements of
said Section and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender other than any Conduit Lender (an
"Assignor") may, in accordance with applicable law, at any time and from time to
time assign to any Lender, any affiliate of any Lender or any Approved Fund or,
with the consent of the Borrower and the Administrative Agent (which, in each
case, shall not be unreasonably withheld or delayed), to an additional bank,
financial institution or other entity (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, executed by such Assignee, such
Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that no such assignment to an Assignee
(other than any Lender, any affiliate of any Lender or any Approved Fund) shall
be in an aggregate principal amount of less than $5,000,000 (other than in the
case of an assignment of all of a Lender's interests under this Agreement),
unless otherwise agreed by the Borrower and the Administrative Agent. For
purposes of the proviso contained in the preceding sentence, the amount
described therein shall be aggregated in respect of each Lender and its related
Approved Funds, if any. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent
65
provided in such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder with a Commitment and/or Loans as set forth therein, and (y)
the Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 9.6, the consent of the
Borrower shall not be required for any assignment that occurs when an Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
any Conduit Lender may assign at any time to its designating Lender hereunder
without the consent of the Borrower or the Administrative Agent any or all of
the Loans it may have funded hereunder and pursuant to its designation agreement
and without regard to the limitations set forth in the first sentence of this
Section 9.6(c).
(d) The Administrative Agent shall, on behalf of the
Borrower, maintain at its address referred to in Section 9.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment of,
and the principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not evidenced
by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be issued
to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance
executed by an Assignor, an Assignee and any other Person whose consent is
required by Section 9.6(c), together with payment to the Administrative Agent of
a registration and processing fee of $4,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(f) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section 9.6 concerning
assignments of Loans and Notes relate only to absolute
66
assignments and that such provisions do not prohibit assignments creating
security interests, including any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
(g) The Borrower, upon receipt of written notice from
the relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (f) above.
(h) Each Loan Party, each Lender and the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period of
forbearance.
9.7 Adjustments; Set-off. (a) Except to the extent
that this Agreement expressly provides for payments to be allocated to a
particular Lender, if any Lender (a "Benefitted Lender") shall, at any time
after the Loans and other amounts payable hereunder shall immediately become due
and payable pursuant to Section 7, receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived
67
by the Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower
and the Administrative Agent after any such setoff and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Loan Parties, the Administrative
Agent and the Lenders with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
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(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United
States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it
may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid to the Borrower at its
address set forth in Section 9.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any
legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
9.13 Acknowledgments. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement
and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in
69
connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or
among the Borrower and the Lenders.
9.14 Confidentiality. Each of the Administrative
Agent and each Lender agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement that is designated
by such Loan Party as confidential; provided that nothing herein shall prevent
the Administrative Agent or any Lender from disclosing any such information (a)
to the Administrative Agent, any other Lender, any affiliate of any Lender or
any Approved Fund, (b) to any actual or prospective Transferee or Hedge
Agreement counterparty that agrees to comply with the provisions of this
Section, (c) to its employees, directors, agents, attorneys, accountants and
other professional advisors or those of any of its affiliates with a need to
know such information for a purpose related to the transactions described
herein, (d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
that has been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document.
9.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.16 Group to Become a Party to this Agreement. It
is understood that, pursuant to Section 10 of the Guarantee Agreement, Group
shall become a party to this Agreement for the purposes of making the
representations and warranties contained herein and agreeing to comply with the
covenants and other applicable provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
T. ROWE PRICE ASSOCIATES, INC.
By: /s/ George A. Roche
Title: Chairman and President
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Heather A. Lindstrom
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Lawrence C. Bigelow
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Timothy J. Somers
Title: Vice President
BANK ONE, N.A.
By: /s/ Nicole Holzaphel
Title: First Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Paul Devine
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ John T. Daley
Title: Vice President
ALLFIRST BANK
By: /s/ Marion I. Knott
Title: Senior Vice President
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Annex A
PRICING GRID
Consolidated Applicable Applicable
Leverage Ratio Fee Rate Margin
> or = 2.0:1.0 0.20% 0.55%
> or = 1.5:1.0
but <2.0:1.0 0.175% 0.45%
<1.5:1.0 0.15% 0.35%
Changes in the Applicable Margin or the Applicable Fee rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
that is three Business Days after the date on which financial statements are
delivered to the Lenders pursuant to Section 5.1 and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified in Section 5.1, then, until the date that is three Business Days after
the date on which such financial statements are delivered, the highest rate set
forth in each column of the Pricing Grid shall apply. In addition, at all times
while an Event of Default shall have occurred and be continuing, the highest
rate set forth in each column of the Pricing Grid shall apply.
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Schedule 1.1
COMMITMENTS
NAME OF LENDER COMMITMENT
The Chase Manhattan Bank $104,166,666
Fleet National Bank $104,166,667
The Bank of New York $62,500,000
Bank One, N.A. $62,500,000
PNC Bank, National Association $62,500,000
State Street Bank and Trust Company $62,500,000
Allfirst Bank $41,666,667