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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-12477
AMGEN INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3540776
- ------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1840 Dehavilland Drive, Thousand Oaks, California 91320-1789
- ---------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 447-1000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes X No
As of June 30, 1995, the registrant had 263,477,780(A) shares of
Common Stock, $.0001 par value, outstanding.
- ---------------
(A)All share numbers have been adjusted retroactively to reflect a
two-for-one split of the Common Stock to be effected in the form
of a 100 percent stock dividend to be distributed on August 15,
1995 to stockholders of record on August 1, 1995.
AMGEN INC.
INDEX
Page No.
PART I FINANCIAL INFORMATION
Item 1. Financial Statements ......................3
Condensed Consolidated Statements of
Operations - three and six months
ended June 30, 1995 and 1994 ................4 - 5
Condensed Consolidated Balance Sheets -
June 30, 1995 and December 31, 1994 .............6
Condensed Consolidated Statements of
Cash Flows - six months
ended June 30, 1995 and 1994 ................7 - 8
Notes to Condensed Consolidated Financial
Statements ......................................9
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations ...............................14
PART II OTHER INFORMATION
Item 1. Legal Proceedings ........................18
Item 4. Submission of Matters to a Vote of
Security Holders .........................20
Item 5. Other Information ........................20
Item 6. Exhibits and Reports on Form 8-K .........20
Signatures........................................21
Index to Exhibits.................................22
Page 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
The information in this report for the three and six months ended
June 30, 1995 and 1994, is unaudited but includes all adjustments
(consisting only of normal recurring accruals) which Amgen Inc. ("Amgen"
or the "Company") considers necessary for a fair presentation of the
results of operations for those periods.
The condensed financial statements should be read in conjunction
with the Company's financial statements and the notes thereto
contained in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994.
Interim results are not necessarily indicative of results for
the full fiscal year.
Page 3
AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
-------- -------- -------- --------
Revenues:
Product sales .......... $462,533 $388,575 $873,770 $734,306
Corporate partner
revenues .............. 21,535 18,838 41,311 32,829
Royalty income ......... 9,644 7,272 17,997 11,548
-------- -------- -------- --------
Total revenues ....... 493,712 414,685 933,078 778,683
-------- -------- -------- --------
Operating expenses:
Cost of sales .......... 76,438 64,394 143,011 117,677
Research and
development ........... 108,358 80,230 222,241 153,955
Marketing and selling .. 69,880 59,591 128,641 112,764
General and
administrative ........ 34,538 30,186 69,176 58,494
Loss of affiliates, net 13,320 8,627 26,005 15,884
-------- -------- -------- --------
Total operating
expenses ........... 302,534 243,028 589,074 458,774
-------- -------- -------- --------
Operating income ........ 191,178 171,657 344,004 319,909
-------- -------- -------- --------
Other income (expense):
Interest and other
income ................ 18,361 3,724 31,260 9,235
Interest expense, net .. (3,750) (2,747) (7,534) (5,387)
-------- -------- -------- --------
Total other income
(expense) .......... 14,611 977 23,726 3,848
-------- -------- -------- --------
Income before income
taxes .................. 205,789 172,634 367,730 323,757
Provision for income
taxes .................. 68,085 65,170 121,402 122,833
-------- -------- -------- --------
Net income .............. $137,704 $107,464 $246,328 $200,924
======== ======== ======== ========
See accompanying notes.
(Continued on next page)
Page 4
AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Continued)
(In thousands, except per share data)
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
-------- -------- --------- ---------
Earnings per share:
Primary ............... $ .49 $ .38 $ .88 $ .72
Fully diluted ......... $ .49 $ .38 $ .87 $ .72
Shares used in
calculation of:
Primary earnings per
share ................ 278,830 279,218 279,230 280,972
Fully diluted earnings
per share ............ 280,298 279,262 281,534 280,972
See accompanying notes.
Page 5
AMGEN INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
(Unaudited)
June 30, December 31,
1995 1994
---------- ----------
ASSETS
Current assets:
Cash and cash equivalents ................ $ 194,858 $ 211,323
Marketable securities .................... 655,790 485,358
Trade receivables, net ................... 218,307 194,712
Inventories .............................. 80,304 98,004
Deferred tax assets, net ................. 70,176 70,176
Other current assets ..................... 52,530 56,065
---------- ----------
Total current assets ................... 1,271,965 1,115,638
Property, plant and equipment at cost, net 677,981 665,314
Investments in affiliated companies....... 74,339 82,263
Other assets.............................. 135,828 130,932
---------- ----------
$2,160,113 $1,994,147
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ......................... $ 38,069 $ 30,476
Commercial paper ......................... 99,120 99,667
Other accrued liabilities ................ 444,883 406,287
---------- ----------
Total current liabilities .............. 582,072 536,430
Long-term debt............................ 181,200 183,407
Contingencies
Stockholders' equity:
Common stock, $.0001 par value; 750,000
shares authorized; outstanding - 263,478
shares in 1995 and 264,655 shares in
1994 .................................... 26 26
Additional paid-in capital ............... 769,019 719,297
Retained earnings ........................ 627,796 554,987
---------- ----------
Total stockholders' equity ............. 1,396,841 1,274,310
---------- ----------
$2,160,113 $1,994,147
========== ==========
See accompanying notes.
Page 6
AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
Six Months Ended
June 30,
1995 1994
-------- ----------
Cash flows from operating activities:
Net income .......................... $246,328 $ 200,924
Depreciation and amortization ....... 42,373 36,865
Other non-cash expenses ............. 72 2,679
Deferred income taxes ............... - 3,536
Loss of affiliates, net ............. 26,005 15,884
Cash provided by (used in):
Trade receivables, net ............ (23,595) (15,962)
Inventories ....................... 17,700 (5,027)
Other current assets .............. 3,535 5,929
Accounts payable .................. 7,593 (6,065)
Accrued liabilities ............... 38,622 (21,396)
-------- ----------
Net cash provided by operating
activities ...................... 358,633 217,367
-------- ----------
Cash flows from investing activities:
Purchases of property, plant and
equipment ......................... (55,040) (65,637)
Proceeds from maturities of
marketable securities ............. 48,445 61,239
Proceeds from sales of marketable
securities ........................ 604,072 1,001,761
Purchases of marketable securities .. (822,949) (935,167)
Decrease (increase) in investments
in affiliated companies ........... 5,366 (17,647)
Increase in other assets ............ (4,896) (10,305)
-------- ----------
Net cash (used in) provided by
investing activities ............ (225,002) 34,244
-------- ----------
See accompanying notes.
(Continued on next page)
Page 7
AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
(In thousands)
(Unaudited)
Six Months Ended
June 30,
1995 1994
-------- ----------
Cash flows from financing activities:
Decrease in commercial paper ........ $ (547) $ (10,033)
Proceeds from issuance of long-term
debt .............................. - 12,499
Repayment of long-term debt ......... (2,233) (1,061)
Net proceeds from issuance of common
stock upon the exercise of stock
options ........................... 40,782 11,797
Tax benefit related to stock options. 8,868 7,400
Net proceeds from issuance of common
stock upon the exercise of warrants - 15,330
Repurchases of common stock ......... (173,519) (150,481)
Other ............................... (23,447) (14,004)
-------- ----------
Net cash used in financing
activities ...................... (150,096) (128,553)
-------- ----------
Increase in cash and cash equivalents. (16,465) 123,058
Cash and cash equivalents at
beginning of period ................. 211,323 128,505
-------- ----------
Cash and cash equivalents at end of
period .............................. $194,858 $ 251,563
======== ==========
See accompanying notes.
Page 8
AMGEN INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1995
1. Summary of significant accounting policies
Business
Amgen Inc. ("Amgen" or the "Company") is a global biotechnology
company that develops, manufactures and markets human therapeutics
based on advanced cellular and molecular biology.
Principles of consolidation
The consolidated financial statements include the accounts of
the Company and its wholly owned subsidiaries as well as affiliated
companies for which the Company has a controlling financial interest
and exercises control over their operations ("majority controlled
affiliates"). All material intercompany transactions and balances
have been eliminated in consolidation. Investments in affiliated
companies which are 50% owned and/or where the Company exercises
significant influence over operations are accounted for using the
equity method. All other equity investments are accounted for under
the cost method. The caption "Loss of affiliates, net" includes
Amgen's equity in the operating results of affiliated companies and
the minority interest others hold in the operating results of Amgen's
majority controlled affiliates.
Inventories
Inventories are stated at the lower of cost or market. Cost is
determined in a manner which approximates the first-in, first-out
(FIFO) method. Inventories are shown net of applicable reserves and
allowances. Inventories consist of the following (in thousands):
June 30, December 31,
1995 1994
------- -------
Raw materials .......... $ 9,508 $10,943
Work in process ........ 40,933 54,032
Finished goods ......... 29,863 33,029
------- -------
$80,304 $98,004
======= =======
Product sales
Product sales consist of two products, EPOGEN(R) (Epoetin alfa)
and NEUPOGEN(R) (Filgrastim).
Quarterly NEUPOGEN(R) sales volume in the United States is
influenced by a number of factors including underlying demand,
seasonality of cancer chemotherapy administration and wholesaler
Page 9
inventory management practices. Wholesaler inventory reductions tend
to reduce domestic NEUPOGEN(R) sales in the first quarter each year.
NEUPOGEN(R) sales in the European Union ("EU") have experienced a
decline in the third quarter in prior years due to seasonality.
As a result of an agreement between Amgen and Ortho
Pharmaceutical Corporation, a subsidiary of Johnson & Johnson
("Johnson & Johnson") covering the U.S. market for the Company's
Epoetin alfa product, Amgen does not recognize product sales it makes
into the contractual market of Johnson & Johnson and does recognize
the product sales made by Johnson & Johnson into Amgen's contractual
market. These sales amounts, and adjustments thereto, are derived
from third-party data on shipments to end users and their usage (see
Note 4, "Contingencies - Johnson & Johnson arbitration").
Income taxes
Income taxes are accounted for in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 109 (Note 3).
Earnings per share
Earnings per share are computed in accordance with the treasury
stock method. Primary and fully diluted earnings per share are based
upon the weighted average number of common shares and dilutive common
stock equivalents during the period in which they were outstanding.
Common stock equivalents include outstanding options under the
Company's stock option plans and warrants to purchase shares of the
Company's common stock. The warrants expired on June 30, 1994.
Basis of presentation
The financial information for the three and six months ended
June 30, 1995 and 1994 is unaudited but includes all adjustments
(consisting only of normal recurring accruals) which the Company
considers necessary for a fair presentation of the results of
operations for these periods. Interim results are not necessarily
indicative of results for the full fiscal year.
Reclassification
Certain prior period amounts have been reclassified to conform
to the current period presentation.
2. Debt
As of June 30, 1995, $99.1 million of commercial paper was
outstanding. These borrowings generally had maturities of three
months or less and had effective interest rates averaging 6.1%.
During the three months ended June 30, 1995, the Company
replaced its existing unsecured credit facility with a new unsecured
Page 10
credit facility (the "credit facility"). The credit facility
includes a commitment expiring on June 23, 2000 for up to $150.0
million of borrowings under a revolving line of credit (the
"revolving line commitment") and a commitment expiring on December 5,
1997 for up to an additional $73.0 million of letters of credit (the
"letters of credit commitment"). As of June 30, 1995, $150.0 million
was available under the revolving line commitment for borrowing and
to support the Company's commercial paper program. Also, as of June
30, 1995, letters of credit totaling $73.0 million were issued and
outstanding to secure the Company's promissory notes and accrued
interest thereon. Borrowings under the revolving line commitment
bear interest at various rates which are a function of, at the
Company's option, either the prime rate of a major bank, the federal
funds rate or a Eurodollar base rate. Under the terms of the credit
facility, the Company is required to meet a minimum interest coverage
ratio and maintain a minimum level of tangible net worth. In
addition, the credit facility contains limitations on investments,
liens and sale/leaseback transactions.
Long-term debt consists of the following (in thousands):
June 30, December 31,
1995 1994
-------- --------
Medium Term Notes ............. $113,000 $113,000
Promissory notes .............. 68,200 68,200
Other obligations ............. 19 2,252
-------- --------
181,219 183,452
Less current portion .......... (19) (45)
-------- --------
$181,200 $183,407
======== ========
The Company has registered $200.0 million of unsecured medium
term debt securities ("Medium Term Notes") of which $113.0 million
were outstanding at June 30, 1995. These Medium Term Notes bear
interest at fixed rates averaging 5.8% and mature in two to eight
years.
3. Income taxes
The provision for income taxes consists of the following (in
thousands):
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
-------- -------- -------- --------
Federal ............ $61,639 $56,026 $110,177 $105,887
State .............. 6,446 9,144 11,225 16,946
------- ------- -------- --------
Total ............ $68,085 $65,170 $121,402 $122,833
======= ======= ======== ========
Page 11
The decrease in the current year tax rate is due to tax benefits
from the sale of products manufactured in the Puerto Rico fill-and-
finish facility which began in the first quarter of 1995.
4. Contingencies
Johnson & Johnson arbitration
In September 1985, the Company granted Johnson & Johnson an
exclusive license under certain patented technology and know-how of
the Company to sell erythropoietin throughout the United States for
all human uses except dialysis and diagnostics.
In January 1989, Johnson & Johnson initiated arbitration
proceedings with respect to a number of disputes which had arisen
between Amgen and Johnson & Johnson as to the respective rights and
obligations of the parties under the various agreements between them.
Amgen filed a cross petition for arbitration raising additional
disputes for resolution by the arbitrator. The scope of the
arbitration covered erythropoietin, hepatitis B vaccine and
interleukin-2.
In April 1990, the arbitrator ruled that Johnson & Johnson must
purchase from Amgen all of Johnson & Johnson's actual United States
sales requirements of recombinant human erythropoietin. In December
1990, the U.S. Food and Drug Administration approved Amgen's
application to name Johnson & Johnson a distributor of Epoetin alfa
under the trademark PROCRIT(R). In January 1991, Johnson & Johnson
began distributing Epoetin alfa.
In June 1991, the arbitrator issued an opinion awarding Johnson
& Johnson $164 million on its claims regarding erythropoietin. In
September 1992, the arbitrator found that Johnson & Johnson had
breached its obligations regarding hepatitis B vaccine and
interleukin-2, and in January 1993 awarded the Company approximately
$90 million in damages against Johnson & Johnson. In January 1993,
the Company paid Johnson & Johnson the sum of $82.4 million,
representing the difference between the damages awarded Johnson &
Johnson as a result of its erythropoietin claims, and the amounts
awarded Amgen against Johnson & Johnson as a result of its hepatitis
B vaccine and interleukin-2 claims, plus interest. Johnson & Johnson
returned to the Company the rights to develop and market hepatitis B
vaccine and interleukin-2 in March 1991.
The Company and Johnson & Johnson are required to compensate
each other for Epoetin alfa sales which either party makes into the
other party's contractual market. The Company has established and is
employing an accounting methodology to assign the proceeds of sales
of EPOGEN(R) and PROCRIT(R) in Amgen's and Johnson & Johnson's
respective contractual markets. Johnson & Johnson has disputed the
methodology employed by the Company, which is the subject of the
current arbitration proceeding, and is proposing an alternative
methodology for adoption by the arbitrator. If, as a result of the
arbitration proceeding, a methodology different from that currently
employed by the Company is instituted to assign the proceeds of sales
between the parties, it may yield results that are different from the
Page 12
results of the accounting methodology currently employed by the
Company. As a result of the arbitration, it is possible that the
Company would recognize a different level of EPOGEN(R) sales than are
currently being recognized. As a result of the arbitration, the
Company may be required to pay additional compensation to Johnson &
Johnson for sales during prior periods, or Johnson & Johnson may be
required to pay compensation to the Company for such prior period
sales. Due to the uncertainties of any arbitrated result, the
Company has established net liabilities that exceed the amounts paid
to Johnson & Johnson.
A trial date has been reset for March 1, 1996 before the
arbitrator regarding the accounting methodologies and compensation
for sales by Johnson & Johnson into Amgen's contractual market and
sales by Amgen into Johnson & Johnson's contractual market.
Discovery as to these issues is in progress.
Synergen litigation
Acquisition litigation
The Company and its wholly owned subsidiary, Amgen Boulder Inc.
(formerly Synergen, Inc.), have been named as defendants in several
lawsuits filed in connection with the Company's December 1994
acquisition of Synergen (the "Acquisition"). One suit, brought by
plaintiffs seeking to represent a class of Synergen warrant holders
who claim to have been deprived of the benefit of their warrants,
includes a request for general damages in the sum of $34.3 million
and also names Amgen Boulder Development Corporation as a defendant.
The balance of the suits have been brought by plaintiffs who seek to
represent a class of stockholders of Synergen common stock. These
plaintiffs seek an unspecified amount of compensatory damages, an
order rescinding the Acquisition and related equitable relief based
upon allegations that the defendants breached their fiduciary duties
by failing to maximize stockholder value and defrauded the plaintiffs
by omitting to disclose allegedly material information concerning
Synergen's future prospects.
ANTRIL(TM) litigation
Several lawsuits have been filed against Synergen alleging
misrepresentations in connection with its research and development of
ANTRIL(TM) for the treatment of sepsis. One suit brought by three
Synergen stockholders alleges violations of state securities laws,
fraud and misrepresentation and seeks an unspecified amount of
compensatory damages and punitive damages. Another suit, proposed as
a class action, filed by a limited partner of a partnership with
which Synergen is affiliated, seeks rescission of certain payments
Page 13
made to one of the defendants (or unspecified damages not less than
$50.0 million) and treble damages based on a variety of allegations.
Broker-dealers who acted as market makers in Synergen options have
also filed a suit claiming in excess of $3.2 million in trading
losses.
While it is not possible to predict accurately or determine the
eventual outcome of the Johnson & Johnson arbitration, the Synergen
litigation or various other legal proceedings (including patent
disputes) involving Amgen, the Company believes that the outcome of
these proceedings will not have a material adverse effect on its
financial statements.
5. Capital stock
During the six months ended June 30, 1995, the Company acquired
5.0 million shares of its common stock at a total cost of $173.5
million under its common stock repurchase program. At June 30, 1995,
$157.7 million of the amount approved by the Board of Directors
remained available for repurchase through December 31, 1995. Stock
repurchased under the program has been retired and such repurchases
offset the dilutive effect of the Company's stock option and stock
purchase plans.
In July 1995, the Board of Directors approved a two-for-one
split of the Company's Common Stock to be effected in the form of a
100 percent stock dividend. The dividend will be distributed on
August 15, 1995, to stockholders of record on August 1, 1995.
Accordingly, the condensed consolidated financial statements and
and accompanying notes have been retroactively adjusted to give
recognition to this stock split.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Liquidity and Capital Resources
Cash provided by operating activities has been and is expected
to continue to be the Company's primary source of funds. During the
six months ended June 30, 1995, operations provided $358.6 million of
cash compared with $217.4 million during the same period last year.
The Company had cash, cash equivalents and marketable securities of
$850.6 million at June 30, 1995, compared with $696.7 million at
December 31, 1994.
Capital expenditures totaled $55.0 million for the six months
ended June 30, 1995, compared with $65.6 million for the same period
a year ago. Over the next few years, the Company expects to spend
approximately $100.0 million to $200.0 million per year on capital
projects to expand the Company's global operations.
The Company receives cash from the exercise of employee stock
options. During the six months ended June 30, 1995, stock options
Page 14
and their related tax benefits provided $49.7 million of cash
compared with $19.2 million for the same period last year. Proceeds
from the exercise of stock options and their related tax benefits
will vary from period to period based upon fluctuations in the market
value of the Company's stock relative to the exercise price of such
options, among other factors.
The Company has a common stock repurchase program to offset the
dilutive effect of its employee benefit stock option and stock
purchase plans. Since its inception in 1992 through June 30, 1995,
the Company has repurchased $767.3 million of its common stock and is
authorized to purchase up to an additional $157.7 million through
December 31, 1995. During the six months ended June 30, 1995, the
Company purchased 5.0 million shares of common stock at a cost of
$173.5 million compared with 7.0 million shares purchased at a cost
of $150.5 million during the same period last year.
To provide for financial flexibility and increased liquidity,
the Company has established several sources of debt financing. The
Company has filed a shelf registration statement with the Securities
and Exchange Commission under which it could issue up to $200.0
million of Medium Term Notes. At June 30, 1995, $113.0 million of
Medium Term Notes were outstanding which mature in two to eight
years. The Company has a commercial paper program which provides for
short-term borrowings up to an aggregate face amount of $200.0
million. At June 30, 1995, $99.1 million of commercial paper was
outstanding, generally with maturities of three months or less.
The Company also has a $150.0 million revolving line of credit,
principally to support the Company's commercial paper program. No
borrowings on this line of credit were outstanding at June 30, 1995.
The Company invests its cash in accordance with a policy that
seeks to maximize returns while ensuring both liquidity and minimal
risk of principal loss. The policy limits investments to certain
types of instruments issued by institutions with investment grade
credit ratings, and places restrictions on maturities and
concentration by type and issuer. The Company's fixed income
investments are subject to the risk of market interest rate
fluctuations, and all of the Company's investments are subject to
risks associated with the ability of the issuers to perform their
obligations under the instruments.
The Company has a program to manage certain portions of its
exposure to fluctuations in foreign currency exchange rates. These
exposures primarily result from European sales. The Company hedges
the related receivables with foreign currency forward contracts, which
typically mature within six months. The Company uses foreign currency
option and forward contracts which generally expire within 12 months
to hedge certain anticipated future cash flows related to these
sales. At June 30, 1995, outstanding option and forward contracts
totaled $38.6 million and $66.9 million, respectively.
The Company believes that existing funds, cash generated from
operations, and existing sources of debt financing will be adequate
to satisfy its working capital and capital expenditure requirements
and to support its common stock repurchase program for the
Page 15
foreseeable future. However, the Company may raise additional
capital from time to time to take advantage of favorable conditions
in the markets or in connection with the Company's corporate
development activities.
Results of Operations
Product sales
Product sales increased 19% for both the three and six months
ended June 30, 1995, compared with the same periods last year.
NEUPOGEN(R) (Filgrastim)
The Company's worldwide NEUPOGEN(R) sales were $247.0 million
and $459.4 million for the three and six months ended June 30, 1995,
respectively. These amounts represent increases of 16.5% and 16.7%,
respectively, over the same periods last year.
Domestic sales of NEUPOGEN(R) were $175.8 million and $323.1
million for the three and six months ended June 30, 1995,
respectively. These amounts represent increases of $17.4 million and
$32.7 million, or 11.0% and 11.3%, respectively, over the same
periods last year. These increases were primarily due to increased
penetration of the market for colony-stimulating factors.
International sales of NEUPOGEN(R), primarily in Europe, were
$71.2 million and $136.2 million for the three and six months ended
June 30, 1995, respectively. These amounts represent increases of
$17.6 million and $32.9 million, or 32.7% and 31.9%, respectively,
over the same periods last year. Three factors, each contributing
approximately one third of reported sales growth, account for these
increases: increased market penetration, the favorable effects of
strengthened foreign currencies, and the inclusion of sales from
three additional countries as the result of Austria, Sweden, and
Finland joining the EU on January 1, 1995. Prior to the entry of
these countries into the EU, F. Hoffmann La Roche paid the Company
royalties on sales in these countries under a license agreement. The
Company's overall share of the colony-stimulating factor market in
the EU has decreased slightly since the introduction in 1994 of
competing colony stimulating factor products.
Quarterly NEUPOGEN(R) sales volume in the United States is
influenced by a number of factors including underlying demand,
seasonality of cancer chemotherapy administration and wholesaler
inventory management practices. Wholesaler inventory reductions tend
to reduce domestic NEUPOGEN(R) sales in the first quarter each year.
In prior years, NEUPOGEN(R) sales in the EU have experienced a
decline to varying degrees in the third quarter due to seasonality.
EPOGEN(R) (Epoetin alfa)
EPOGEN(R) sales were $215.5 million and $414.4 million for the
three and six months ended June 30, 1995, respectively, increases of
$39.0 million and $73.8 million or 22.1% and 21.7% over the same
periods last year.
Page 16
These increases were primarily due to an increase in the U.S.
dialysis patient population, the administration of higher doses of
EPOGEN(R) per patient, and, to a lesser extent, increased penetration
of the dialysis market.
Cost of sales
Cost of sales as a percentage of product sales was 16.5% and
16.4% for the three and six months ended June 30, 1995, respectively,
compared with 16.6% and 16.0% for the same periods last year. Cost
of sales as a percentage of product sales is expected to decline
slightly in the second half of the current year when benefits
of the Puerto Rico fill-and-finish facility are realized.
Research and development
During the three and six months ended June 30, 1995, research
and development expenses increased $28.1 million and $68.3 million,
or 35.1% and 44.4%, respectively, compared with the same periods last
year. These increases are primarily due to an expansion of the
Company's internal research and development staff, partially as a
result of the acquisition of Synergen. In addition, the current year
six month period includes a $20 million signing payment made in the
first quarter to The Rockefeller University for an exclusive license
to certain technologies. Annual research and development expenses
are expected to increase at a rate exceeding the anticipated annual
product sales growth rate due to planned increases in internal
efforts on new product discovery and development and increases in
external research collaboration costs, including acquisitions of
product and technology rights.
Marketing and selling
Marketing and selling expenses increased $10.3 million and $15.9
million, or 17.3% and 14.1%, respectively, during the three and six
months ended June 30, 1995 compared with the same periods last year.
These increases primarily reflect marketing efforts to improve
NEUPOGEN(R) market penetration and EPOGEN(R) marketing efforts to
bring more patients within the target hematocrit range. Future
marketing and selling expenses combined with future general and
administrative expenses are expected to have an aggregate annual
growth rate lower than the anticipated annual growth in product
sales.
General and administrative
General and administrative expenses increased $4.4 million and
$10.7 million, or 14.4% and 18.3%, respectively, during the three and
six months ended June 30, 1995 compared with the same periods last year.
These increases are primarily due to staff-related expenses. Future
general and administrative expenses combined with future marketing
and selling expenses are expected to have an aggregate annual growth
rate lower than the anticipated annual growth in product sales.
Interest and other income
Interest and other income increased $14.6 million or 393.0% and
$22.0 million or 238% during the three and six months ended June 30,
1995, respectively, compared with the same periods last year. These
increases are primarily due to: 1) capital gains realized in the
Page 17
Company's investment portfolio during the current year periods while
capital losses were incurred in the prior year periods, and 2) higher
interest rates earned by the Company's investment portfolio during
the current year periods. Capital gains and losses realized will
fluctuate from period to period.
Income taxes
The Company's effective tax rate for the three and six months
ended June 30, 1995 was 33.1% and 33.0% compared to 37.8% and 37.9%,
respectively, for the same periods last year. These decreases in the
tax rate were due to tax benefits from the sale of products
manufactured in the Puerto Rico fill-and-finish facility which began
in the first quarter of 1995. These tax benefits are expected to
result in an annualized effective tax rate of 32%-34%.
Financial Outlook
Worldwide NEUPOGEN(R) sales for 1995 are expected to grow at a
double digit rate but lower than the 1994 growth rate. Future
NEUPOGEN(R) sales increases are dependent primarily upon further
penetration of existing markets, the timing and nature of additional
indications for which the product may be approved, and the effects of
competitive products. In addition, international NEUPOGEN(R) sales
will continue to be subject to changes in foreign currency exchange
rates and increased competition.
EPOGEN(R) sales for 1995 are anticipated to grow at an annual
rate approaching 20%. The Company anticipates that increases in
both the U.S. dialysis patient population and dosing will continue to
drive EPOGEN(R) sales. EPOGEN(R) sales may be affected also by
future changes in reimbursement rates or the basis for reimbursement
by the federal government.
The Company expects double digit earnings growth in 1995
primarily as a result of the anticipated increases in product sales,
increases realized in interest and other income, and the
decrease in the 1995 tax rate. Estimates of future product sales and
earnings, however, are necessarily speculative in nature and are
difficult to predict with accuracy.
Legal Matters
The Company is engaged in arbitration proceedings with one of
its licensees and various legal proceedings relating to Synergen.
For a discussion of these matters see Note 4 to the Condensed
Consolidated Financial Statements.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is engaged in arbitration proceedings with one of
its licensees. For a complete discussion of this matter see Note 4
to the Condensed Consolidated Financial Statements - "Johnson &
Johnson arbitration". Other legal proceedings are also reported in
Page 18
Note 4 to the Condensed Consolidated Financial Statements and in the
Company's Form 10-K for the year ended December 31, 1994, with
material developments since that report described below except to the
extent otherwise reported in the Company's Form 10-Q for the period
ended March 31, 1995. While it is not possible to predict accurately
or to determine the eventual outcome of these matters, the Company
believes that the outcome of these legal proceedings will not have a
material adverse effect on the financial statements of the Company.
Synergen litigation
Acquisition litigation
In Glick v. Synergen, Inc., et al., a lawsuit brought by a class
of Synergen warrant holders who claim to have been deprived of the
benefit of their warrants as the result of the Company's 1994
acquisition of Synergen, Inc., the plaintiffs have filed a third
amended complaint. Previously, this action had been dismissed by the
court with leave to amend the complaint. The third amended complaint
added Amgen Boulder Development Corporation as a defendant, dropped
former officers and directors of Synergen as defendants and added
claims for breach of contract and fraud.
ANTRIL(TM) litigation
A new lawsuit, Susquehanna Investment Group, et al. v. Amgen
Boulder, Inc., et al., has been filed in the United States District
Court in Denver, Colorado against Amgen Boulder, Inc. (formerly
Synergen, Inc.) alleging misrepresentations in connection with the
research and development of ANTRIL(TM) for the treatment of sepsis.
This suit, filed on May 19, 1995, is brought by broker-dealers who
acted as market makers in Synergen options. The plaintiffs claim in
excess of $3.2 million in trading losses on option positions as the
result of the alleged misrepresentations.
Erythropoietin patent litigation
Johnson & Johnson has filed a petition for certiorari with the
United States Supreme Court requesting review of an April 5, 1995
decision by the United States Court of Appeals for the Federal
Circuit. This decision upheld rulings made in December 1992 by the
United States District Court for the District of Massachusetts and
described in the Company's Form 10-K for the year ended
December 31, 1994.
Page 19
Item 4. Submission of Matters to a Vote of Security Holders
The Company held its Annual Meeting of Stockholders on
May 9, 1995. The three matters voted upon at the meeting were to
elect three directors to hold office until the 1998 Annual Meeting of
Stockholders, to approve the Company's Amended and Restated 1991
Equity Incentive Plan, and to ratify the selection of Ernst & Young
LLP as the independent auditors of the Company for the year ending
December 31, 1995.
The following votes were cast for or were withheld with respect
to each of the nominees: Mr. Steven Lazarus: 233,695,044 votes for
and 1,374,586 votes withheld; Mr. Edward J. Ledder: 233,671,300
votes for and 1,398,330 votes withheld; and Dr. Gilbert S. Omenn:
233,696,080 votes for and 1,373,550 votes withheld. All nominees
were declared to have been elected as directors to hold office until
the 1998 Annual Meeting of Stockholders. No abstentions or broker
non-votes were cast for the election of directors.
With respect to the proposal to approve the Company's Amended
and Restated 1991 Equity Incentive Plan, 123,810,578 votes were cast
for the proposal, 67,409,952 votes were cast against the proposal and
2,865,206 votes abstained. 40,983,894 broker non-votes were cast in
connection with the proposal. The Company's Amended and Restated
1991 Equity Incentive Plan was declared to have been approved.
With respect to the proposal to ratify the selection of Ernst &
Young LLP as the Company's independent auditors, 233,895,390 votes
were cast for the proposal, 479,764 votes were cast against the
proposal and 594,476 votes abstained. No broker non-votes were cast
in connection with the proposal. The selection of Ernst & Young LLP
as the Company's independent auditors for the year ending December
31, 1995 was declared to have been ratified.
Item 5. Other Information
In July 1995, the Board of Directors approved a two-for-one
split of the Company's Common Stock to be effected in the form of a
100 percent stock dividend. The dividend will be distributed on
August 15, 1995 to stockholders of record on August 1, 1995.
Item 6. Exhibits and Reports on Form 8-K
(a) Reference is made to the Index to Exhibits included herein.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the three months ended
June 30, 1995.
Page 20
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Amgen Inc.
(Registrant)
Date: 8/11/95 By:/s/ Robert S. Attiyeh
- ------------------ ------------------------------------
Robert S. Attiyeh
Senior Vice President Finance
and Corporate Development, and
Chief Financial Officer
Date: 8/11/95 By:/s/ Larry A. May
- ------------------ ------------------------------------
Larry A. May
Vice President, Corporate
Controller and Chief
Accounting Officer
Page 21
AMGEN INC.
INDEX TO EXHIBITS
Exhibit No. Description
3.1 Restated Certificate of Incorporation. (7)
3.2 Certificate of Amendment to Restated Certificate of
Incorporation, effective as of July 24, 1991. (14)
3.3 Bylaws, as amended to date. (20)
4.1 Indenture dated January 1, 1992 between the Company and
Citibank N.A., as trustee. (15)
4.2 Forms of Commercial Paper Master Note Certificates. (19)
10.1* Company's 1991 Equity Incentive Plan, as amended. (16)
10.2* Company's 1984 Stock Option Plan, as amended, and forms
of Incentive Stock Option Grant and Nonqualified Stock
Option Grant used in connection therewith. (16)
10.3 Shareholder's Agreement of Kirin-Amgen, Inc., dated May
11, 1984, between the Company and Kirin Brewery Company,
Limited (with certain confidential information deleted
therefrom). (1)
10.4 Amendment Nos. 1, 2, and 3, dated March 19, 1985, Jul y
29, 1985 and December 19, 1985, respectively, to the
Shareholder's Agreement of Kirin-Amgen, Inc., dated May
11, 1984 (with certain confidential information deleted
therefrom). (3)
10.5 Product License Agreement, dated September 30, 1985, and
Technology License Agreement, dated, September 30, 1985
between the Company and Ortho Pharmaceutical Corporation
(with certain confidential information deleted
therefrom). (2)
10.6 Product License Agreement, dated September 30, 1985, and
Technology License Agreement, dated September 30, 1985
between Kirin-Amgen, Inc. and Ortho Pharmaceutical
Corporation (with certain confidential information
deleted therefrom). (3)
10.7* Company's Employee Stock Purchase Plan, amended April 1,
1992. (17)
10.8 Agreement, dated February 12, 1986, between the Company
and Sloan-Kettering Institute for Cancer Research (with
certain confidential information deleted therefrom). (4)
10.9 Amendment No. 2, dated November 13, 1990, to Agreement,
dated February 12, 1986, between the Company and Sloan-
Kettering Institute for Cancer Research (with certain
confidential information deleted therefrom). (13)
10.10 Research, Development Technology Disclosure and License
Agreement PPO, dated January 20, 1986, by and between
the Company and Kirin Brewery Co., Ltd. (4)
10.11 Research Collaboration Agreement, dated August 31, 1990,
between Amgen Inc. and Regeneron Pharmaceuticals, Inc.
(with certain confidential information deleted
therefrom). (13)
10.12 Amendment Nos. 4 and 5, dated October 16, 1986
(effective July 1, 1986) and December 6, 1986 (effective
July 1, 1986), respectively, to the Shareholders
Agreement of Kirin-Amgen, Inc. dated May 11, 1984 (with
certain confidential information deleted therefrom). (5)
10.13 Assignment and License Agreement, dated October 16,
1986, between the Company and Kirin-Amgen, Inc. (with
certain confidential information deleted therefrom). (5)
10.14 G-CSF European License Agreement, dated December 30,
1986, between Kirin-Amgen, Inc. and the Company (with
certain confidential information deleted therefrom). (5)
10.15 Research and Development Technology Disclosure and
License Agreement: GM-CSF, dated March 31, 1987, between
Kirin Brewery Company, Limited and the Company (with
certain confidential information deleted therefrom). (5)
10.16* Company's 1987 Directors' Stock Option Plan, as amended.
(13)
10.17 Cross License Agreement, dated June 1, 1987, between
Amgen Inc. and Amgen Clinical Partners, L.P. (6)
10.18 Development Agreement, dated June 1, 1987, between Amg en
Inc. and Amgen Clinical Partners, L.P. (6)
10.19 Joint Venture Agreement, dated June 1, 1987, between
Amgen Inc. and Amgen Clinical Partners, L.P. (6)
10.20 Partnership Purchase Option Agreement, dated June 1,
1987, between Amgen Inc. and Amgen Clinical Partners,
L.P. (6)
10.21* Company's 1988 Stock Option Plan, as amended. (16)
10.22* Company's Retirement and Savings Plan, amended and
restated as of January 1, 1993. (17)
10.23 Amendment, dated June 30, 1988, to Research,
Development, Technology Disclosure and License
Agreement: GM-CSF dated March 31, 1987, between Kirin
Brewery Company, Limited and the Company. (7)
10.24 Amending Agreement, dated June 30, 1988, to Development
Agreement, Partner Purchase Option Agreement, Cross
License Agreement and Joint Venture Agreement, dated
June 1, 1987, between the Company and Amgen Clinical
Partners, L.P. (7)
10.25 Agreement on G-CSF in the EU, dated September 26, 1988,
between Amgen Inc. and F. Hoffmann-La Roche & Co.
Limited Company (with certain confidential information
deleted therefrom). (9)
10.26 Supplementary Agreement to Agreement dated January 4,
1989 to Agreement on G-CSF in the EU, dated September
26, 1988, between the Company and F. Hoffmann-La Roche &
Co. Limited Company, (with certain confidential
information deleted therefrom). (9)
10.27 Agreement on G-CSF in Certain European Countries, dated
January 1, 1989, between Amgen Inc. and F. Hoffmann-La
Roche & Co. Limited Company (with certain confidential
information deleted therefrom). (9)
10.28 Rights Agreement, dated January 24, 1989, between Amgen
Inc. and American Stock Transfer and Trust Company,
Rights Agent. (8)
10.29 First Amendment to Rights Agreement, dated January 22,
1991, between Amgen Inc. and American Stock Transfer and
Trust Company, Rights Agent. (11)
10.30 Second Amendment to Rights Agreement, dated April 2,
1991, between Amgen Inc. and American Stock Transfer and
Trust Company, Rights Agent. (12)
10.31 Deed of Trust and Security Agreement, dated June 1,
1989, between the Company and UNUM Life Insurance
Company of America. (10)
10.32 Note, dated June 1, 1989, between the Company and UNUM
Life Insurance Company of America. (10)
10.33 Agency Agreement, dated November 21, 1991, between Amgen
Manufacturing, Inc. and Citicorp Financial Services
Corporation. (17)
10.34 Agency Agreement, dated May 21, 1992, between Amgen
Manufacturing, Inc. and Citicorp Financial Services
Corporation. (17)
10.35 Guaranty, dated July 29, 1992, by the Company in favor
of Merck Sharp & Dohme Quimica de Puerto Rico, Inc. (17)
10.36 936 Promissory Note No. 01, dated December 11, 1991,
issued by Amgen Manufacturing, Inc. (17)
10.37 936 Promissory Note No. 02, dated December 11, 1991,
issued by Amgen Manufacturing, Inc. (17)
10.38 936 Promissory Note No. 001, dated July 29, 1992, issued
by Amgen Manufacturing, Inc. (17)
10.39 936 Promissory Note No. 002, dated July 29, 1992, issued
by Amgen Manufacturing, Inc. (17)
10.40 Guaranty, dated November 21, 1991, by the Company in
favor of Citicorp Financial Services Corporation. (17)
10.41 Lease and Agreement relating to Lease, dated March 27,
1986 and April 1, 1986, respectively, for 2003 Oak
Terrace Lane between 2001 Hillcrest Partnership and the
Company. (20)
10.42 Partnership Purchase Agreement, dated March 12, 1993,
between the Company, Amgen Clinical Partners, L.P.,
Amgen Development Corporation, the Class A limited
partners and the Class B limited partner. (18)
10.43* Amgen Supplemental Retirement Plan dated June 1, 1993.
(21)
10.44 Promissory Note of Mr. Kevin W. Sharer, dated June 4,
1993. (21)
10.45 Promissory Note of Mr. Larry A. May, dated February 24,
1993. (22)
10.46* First Amendment dated October 26, 1993 to the Company's
Retirement and Savings Plan. (22)
10.47* Amgen Performance Based Management Incentive Plan. (22)
10.48 Agreement and Plan of Merger, dated as of November 17,
1994, among Amgen Inc., Amgen Acquisition Subsidiary,
Inc. and Synergen, Inc. (23)
10.49 Third Amendment to Rights Agreement, dated as of
February 21, 1995, between Amgen Inc. and American Stock
Transfer Trust and Trust Company (24)
10.50 Credit Agreement, dated as of June 23, 1995, among Amgen
Inc., the Borrowing Subsidiaries named therein, the
Banks named therein, Swiss Bank Corporation and ABN AMRO
Bank N.V., as Issuing Banks, and Swiss Bank Corporation,
as Administrative Agent.
11 Computation of per share earnings.
27 Financial Data Schedule.
* Mangagement contract or compensatory plan or arrangement
- ----------------
(1) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended March 31, 1984 on June 26, 1984 and incorporated
herein by reference.
(2) Filed as an exhibit to Quarterly Report on Form 10-Q for the
quarter ended September 30, 1985 on November 14, 1985 and
incorporated herein by reference.
(3) Filed as an exhibit to Quarterly Report on Form 10-Q for the
quarter ended December 31, 1985 on February 3, 1986 and
incorporated herein by reference.
(4) Filed as an exhibit to Amendment No. 1 to Form S-1 Registration
Statement (Registration No. 33-3069) on March 11, 1986 and
incorporated herein by reference.
(5) Filed as an exhibit to the Form 10-K Annual Report for the year
ended March 31, 1987 on May 18, 1987 and incorporated herein by
reference.
(6) Filed as an exhibit to the Quarterly Report on Form 10-Q for the
quarter ended June 30, 1987 on August 12, 1987 and incorporated
herein by reference.
(7) Filed as an exhibit to Form 8 amending the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1988 on August 25, 1988
and incorporated herein by reference.
(8) Filed as an exhibit to the Form 8-K Current Report dated January
24, 1989 and incorporated herein by reference.
(9) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended March 31, 1989 on June 28, 1989 and incorporated
herein by reference.
(10) Filed as an exhibit to the Quarterly Report on Form 10-Q for the
quarter ended June 30, 1989 on August 14, 1989 and incorporated
herein by reference.
(11) Filed as an exhibit to the Form 8-K Current Report dated January
22, 1991 and incorporated herein by reference.
(12) Filed as an exhibit to the Form 8-K Current Report dated April
12, 1991 and incorporated herein by reference.
(13) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended March 31, 1991 on July 1, 1991 and incorporated
herein by reference.
(14) Filed as an exhibit to the Form 8-K Current Report dated July
24, 1991 and incorporated herein by reference.
(15) Filed as an exhibit to Form S-3 Registration Statement dated
December 19, 1991 and incorporated herein by reference.
(16) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended December 31, 1991 on March 30, 1992 and incorporated
herein by reference.
(17) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended December 31, 1992 on March 30, 1993 and incorporated
herein by reference.
(18) Filed as an exhibit to the Form 8-A dated March 31, 1993 and
incorporated herein by reference.
(19) Filed as an exhibit to the Form 10-Q for the quarter ended March
31, 1993 on May 17, 1993 and incorporated herein by reference.
(20) Filed as an exhibit to the Form 10-Q for the quarter ended June
30, 1993 on August 16, 1993 and incorporated herein by
reference.
(21) Filed as an exhibit to the Form 10-Q for the quarter ended
September 30, 1993 on November 12, 1993 and incorporated herein
by reference.
(22) Filed as an exhibit to the Annual Report on Form 10-K for the
year ended December 31, 1993 on March 25, 1994 and incorporated
herein by reference.
(23) Filed as an exhibit to the Form 8-K Current Report dated
November 18, 1994 on December 2, 1994 and incorporated herein by
reference.
(24) Filed as an exhibit to the Form 8-K Current Report dated
February 21, 1995 on March 7, 1995 and incorporated herein by
reference.
EXHIBIT 11
AMGEN INC.
COMPUTATION OF PER SHARE EARNINGS
PRIMARY COMPUTATION
(In thousands except per share data)
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
-------- -------- -------- --------
Net income ............. $137,704 $107,464 $246,328 $200,924
======== ======== ======== ========
Applicable common and
common stock equivalent
shares:
Weighted average shares
of common stock
outstanding during the
period ................ 263,992 265,894 264,602 266,904
Incremental number of
shares outstanding
during the period
resulting from the
assumed exercises of
stock options and
warrants .............. 14,838 13,324 14,628 14,068
-------- -------- -------- --------
Weighted average shares
of common stock and
common stock
equivalents outstanding
during the period ..... 278,830 279,218 279,230 280,972
======== ======== ======== ========
Earnings per common
share primary ......... $ .49 $ .38 $ .88 $ .72
======== ======== ======== ========
EXHIBIT 11
AMGEN INC.
COMPUTATION OF PER SHARE EARNINGS
FULLY DILUTED COMPUTATION
(In thousands except per share data)
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
1995 1994 1995 1994
-------- -------- -------- --------
Net income ............. $137,704 $107,464 $246,328 $200,924
======== ======== ======== ========
Applicable common and
common stock equivalent
shares:
Weighted average shares
of common stock
outstanding during the
period ................ 263,992 265,894 264,604 266,904
Incremental number of
shares outstanding
during the period
resulting from the
assumed exercises of
stock options and
warrants .............. 16,306 13,368 16,930 14,068
-------- -------- -------- --------
Weighted average shares
of common stock and
common stock
equivalents outstanding
during the period ..... 280,298 279,262 281,534 280,972
======== ======== ======== ========
Earnings per common
share fully diluted ... $ .49 $ .38 $ .87 $ .72
======== ======== ======== ========
EXHIBIT 10
CREDIT AGREEMENT
Dated as of June 23, 1995
among
Amgen Inc.,
The Borrowing Subsidiaries Herein Named,
The Banks Herein Named,
and
Swiss Bank Corporation, New York Branch,
as Administrative Agent and as an Issuing Bank
CREDIT AGREEMENT
Dated as of June 23, 1995
This CREDIT AGREEMENT ("Agreement") is dated as of June 23,
1995 and is entered into by and among Amgen Inc., a Delaware
corporation (the "Company"), each of the Borrowing Subsidiaries
listed on Schedule 1.1 hereto, Swiss Bank Corporation, San Francisco
Branch, Citicorp USA, Inc., and each other lender whose name is set
forth on the signature pages hereof as a Bank (collectively, the
"Banks" and individually, a "Bank"), Swiss Bank Corporation, New York
Branch and ABN AMRO Bank N.V., Los Angeles International Branch, as
Issuing Banks, and Swiss Bank Corporation, New York Branch, as
Administrative Agent. In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as
follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Adjusted Net Income" means, with regard to any fiscal
period, Net Income for that fiscal period (a) plus any extraordinary
losses sustained by the Company and its Subsidiaries during that
period, (b) minus any extraordinary gains realized by the Company and
its Subsidiaries during that period.
"Administrative Agent" means Swiss Bank Corporation, New
York Branch, when acting in its capacity as the administrative agent
under any of the Loan Documents.
"Administrative Agent's Office" means the Administrative
Agent's address as set forth on the signature pages of this
Agreement, or such other address as the Administrative Agent
hereafter may designate by written notice to the Company and the
Banks.
"Advance" means any Advance made or to be made by any Bank
to any Borrower as provided in Article 2, and includes each Base Rate
Advance, each Eurodollar Rate Advance and each Competitive Advance.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(and the correlative terms, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"Agreement" means this Credit Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended in accordance with Section
13.2.
"Agreement to Participate" means an Agreement to
Participate, substantially in the form of Exhibit A.
"Anniversary Date" has the meaning set forth in Section 2.8
"Applicable Percentage" means, with respect to Eurodollar
Rate Loans, the Commitment Fee and the LC Reimbursement Fee, the per
annum percentage corresponding to the tier for the Company's Ratings
as specified in the following table:
Rate Spread and Fees
Tier I Tier II Tier III Tier IV
------ ------- -------- -------
AA- and A- and BBB and BBB- or
Aa3 or A3 or Baa2 or Baa3
better better better
Eurodollar Rate Spread .300% .325% .150% .700%
Commitment Fee .100% .110% .150% .250%
LC Reimbursement Fee .300% .325% .500% .700%
Ratings indicated are the Company's senior unsecured long-
term debt ratings by Standard & Poor's Ratings Group and Moody's
Investors Service, Inc., respectively.
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit J, executed by a Bank and an
assignee of all or part of that Bank's interest hereunder.
"Bank" has the meaning set forth in the introductory
paragraph.
"Banking Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday, other than a day on which banks are authorized or
required to be closed in California or New York.
"Base Rate", for any day, means the higher of (i) the rate
of interest in effect on such day as publicly announced by the
Administrative Agent from time to time as its prime commercial
lending rate (such prime rate is not intended to be the lowest rate
of interest charged by the Administrative Agent) and (ii) the sum of
0.50% per annum and the rate of interest determined by the
Administrative Agent to be the average overnight federal funds rate.
"Base Rate Advance" means an Advance made hereunder that
bears interest as set forth in Section 3.1(b) and designated as a
Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder that bears
interest as set forth in Section 3.1(b) and designated as a Base Rate
Loan in accordance with Article 2.
"Base Rate Period" means, as to each Base Rate Loan, the
period commencing on the date specified by the Borrower pursuant to
Section 2.1(b) and ending on the date specified by the Borrower in
its Request for Loan, but not later than thirty days after the date
the Loan is made; provided that:
(a) The first day of any Base Rate Period shall be a Banking
Day;
(b) Any Base Rate Period that would otherwise end on a day that
is not a Banking Day shall be extended to the next
succeeding Banking Day; and
(c) No Base Rate Period shall extend beyond the Maturity Date.
"Borrower" means the Company and any Borrowing Subsidiary;
"Borrowers" means the Company and each other Borrower, collectively.
"Borrowing Subsidiary" means any of the Subsidiaries of
Borrower identified on Schedule 1.1 hereto and any Eligible
Subsidiary that is a party to this Agreement as of the date hereof or
any Eligible Subsidiary that has executed an Agreement to Participate
pursuant to Section 12.1.
"Capital Lease" means, as to any Person, a lease of any
Property by that Person as lessee that is, or should be in accordance
with Financial Accounting Standards Board Statement No. 13, recorded
as a "capital lease" on the balance sheet of that Person prepared in
accordance with Generally Accepted Accounting Principles.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated
as cash in accordance with Generally Accepted Accounting Principles,
except for amounts held by, or on deposit with, another Person as
cash collateral or other security.
"Certificate of a Senior Officer" means a certificate
signed by a Senior Officer of the Person providing the certificate.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied.
"Co-Arrangers" means SBC Capital Markets Inc. and Citicorp
USA, Inc., in their capacity as co-arrangers.
"Code" means the Internal Revenue Code of 1986, as amended
or replaced and as in effect from time to time.
"Commitment" means the aggregate of the Tranche A
Commitment and the Tranche B Commitment, as such Commitments may be
reduced in accordance with Section 2.5. The respective Pro Rata
Shares of the Banks with respect to the Commitments are set forth in
Schedule 2.1.
"Committed Advance" means an Advance made to any Borrower
by any Bank in accordance with such Bank's Pro Rata Share of the
Tranche A Commitment pursuant to Section 2.1.
"Committed Advance Note" means any of the promissory notes
made by the Borrowers in favor of a Bank to evidence revolving
Committed Advances made by that Bank under the Tranche A Commitment,
substantially in the form of Exhibit B, as originally executed or as
the same may from time to time be supplemented, modified, amended,
renewed or extended.
"Common Stock" means the $.0001 par value common stock of
the Company.
"Company" has the meaning set forth in the introductory
paragraph.
"Competitive Advance" means an Advance made to any Borrower
by any Bank not in accordance with that Bank's Pro Rata Share of the
Tranche A Commitment pursuant to Section 2.4.
"Competitive Advance Note" means any of the promissory
notes made by a Borrower in favor of a Bank to evidence Competitive
Advances made by that Bank, substantially in the form of Exhibit C,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed or extended.
"Competitive Bid" means a written bid to provide a
Competitive Advance substantially in the form of Exhibit D, signed by
a Responsible Official of a Bank and properly completed to provide
all information required to be included therein.
"Competitive Bid Request" means (a) a written request
submitted by a Borrower to one or more of the Banks to provide a
Competitive Bid, substantially in the form of Exhibit E, signed by a
Senior Officer and properly completed to provide all information
required to be included therein or (b), at the election of such
Borrower, a telephonic request by such Borrower to the Administrative
Agent for one or more of the Banks to provide a Competitive Bid
which, if so made, shall be made by an Assistant Treasurer or Senior
Officer of such Borrower and shall include the substance of Exhibit E
and shall be promptly confirmed in writing by a Senior Officer of
such Borrower.
"Compliance Certificate" means a certificate in the form of
Exhibit F, properly completed and signed by a Senior Officer of the
Company.
"Consolidated Subsidiary" means, as of any date of
determination and with respect to any Person, any Subsidiary of that
Person whose financial data is, in accordance with Generally Accepted
Accounting Principles, reflected in that Person's consolidated
financial statements.
"Contractual Obligation" means, as to any Person, any
provision of any outstanding Securities issued by that Person or of
any material agreement, instrument or undertaking to which that
Person is a party or by which it or any of its Property is bound.
"Cross-Default Amount" means, as of any date of
determination, an amount equal to the lesser of (i) $50,000,000 or
(ii) 5% of Tangible Net Worth as of the last day of the then most
recently ended Fiscal Quarter with respect to which the Company has
delivered the financial statements required by Section 7.1(a) or, if
the Company is delinquent in the delivery of such financial
statements with respect to the most recently ended Fiscal Quarter, 5%
of Tangible Net Worth as reasonably determined by the Administrative
Agent.
"Current ERISA Affiliate", as applied to any Person, means
(i) any corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Code of
which that Person is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c)
of the Code of which that Person is a member; and (iii) any member of
an affiliated service group within the meaning of Section 414(m) or
(o) of the Code of which that Person, any corporation described in
clause (i) above or any trade or business described in clause (ii)
above is a member.
"Debtor Relief Laws" means the Bankruptcy Code of the
United States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights
of creditors generally.
"Default" means any Event of Default or any event that,
with the giving of any applicable notice or passage of time specified
in Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate described in Section 3.9
"Designated Deposit Account" means a deposit account
designated by a Borrower in its Request for Loan submitted with
respect to each Loan.
"Distribution" means, with respect to any shares of capital
stock or any warrant or right to acquire shares of capital stock or
any other equity security issued by a Person, (a) the retirement,
redemption, purchase, or other acquisition for value (other than for
common stock of such Person) by such Person of any such security, (b)
the declaration or (without duplication) payment by such Person of
any dividend in cash or in Property (other than in common stock of
such Person) on or with respect to any such security, (c) any
Investment by such Person in the holder of any such security where
such Investment is made in lieu of, or to avoid characterization as,
a Distribution described in clauses (a) or (b) above, and (d) any
other payment by such Person constituting a distribution under
applicable laws with respect to such security. Notwithstanding the
foregoing, "Distribution" shall not include a repurchase by the
Company of its Common Stock.
"dollars" or "$" means United States dollars.
"Eligible Subsidiary" means any of the wholly-owned
Subsidiaries of the Company listed on Schedule 1.2.
"Employee Benefit Plan" means any "employee benefit plan"
as defined in Section 3(3) of ERISA which is, or was at any time,
maintained or contributed to by the Company or any of its ERISA
Affiliates.
"Environmental Laws" means all plans, policies or decrees
binding on the Company and its Subsidiaries in accordance with
applicable statutes, ordinances, orders, rules or regulations and all
statutes, ordinances, orders, rules or regulations and the like, in
each case, relating to (i) environmental matters, including, without
limitation, those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries
resulting from the release or threatened release of hazardous
materials, (ii) the generation, use, storage, transportation or
disposal of hazardous materials, or (iii) occupational safety and
health, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, in any manner applicable to the
Company or any of its Subsidiaries or any of their respective
properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. S
9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
S 1801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. S 6901 et seq.), the Federal Water Pollution Control Act (33
U.S.C. S 1251 et seq.), the Clean Air Act (42 U.S.C. S 7401 et seq.),
the Toxic Substances Control Act (15 U.S.C. S 2601 et seq.), the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. S136 et
seq.), the Occupational Safety and Health Act (29 U.S.C. S 651 et
seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. S 11001 et seq.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes
and regulations promulgated pursuant thereto, each as in effect as of
the date of determination.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled
group of corporations within the meaning of Section 414(b) of the
Code of which that Person is, or was at any time, a member; (ii) any
trade or business (whether or not incorporated) which is, or was at
any time, a member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Code of which
that Person is, or was at any time, a member; and (iii) any member of
an affiliated service group within the meaning of Section 414(m) or
(o) of the Code of which that Person, any corporation described in
clause (i) above or any trade or business described in clause (ii)
above is, or was at any time, a member.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for
which the provision for 30-day notice to the PBGC, or the penalty for
failure to provide such notice, has been waived by regulation or by
PBGC technical update); (ii) the failure to meet the minimum funding
standard of Section 412 of the Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Code)
or the failure to make by its due date a required installment under
Section 412(m) of the Code with respect to any Pension Plan or the
failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant
to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by the Company or any of its ERISA
Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in
liability pursuant to Sections 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan,
or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of
liability on the Company or any of its ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by the
Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan if there is any potential liability
therefor, or the receipt by the Company or any of its ERISA
Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or
omission which could give rise to the imposition on the Company or
any of its ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Code or under Section 409 or 502(c),
(i) or (l) or 4071 of ERISA in respect of any Employee Benefit Plan;
(ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against Company or any
of its ERISA Affiliates in connection with any such Employee Benefit
Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Code) to qualify
under Section 401(a) of the Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Code; or (xi) the imposition of a Lien pursuant
to Section 401(a)(29) or 412(n) of the Code or pursuant to ERISA with
respect to any Pension Plan.
"Eurodollar Banking Day" means any Banking Day on which
dealings in dollar deposits are conducted by and among banks in the
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Bank, its
office or branch so designated by written notice to the Company and
the Administrative Agent as its Eurodollar Lending Office. If no
Eurodollar Lending Office is designated by a Bank, its Eurodollar
Lending Office shall be its office at its address for purposes of
notices hereunder.
"Eurodollar Market" means, with respect to any Eurodollar
Rate Loan, the London interbank offer market for U.S. dollar
deposits.
"Eurodollar Obligations" means eurocurrency liabilities, as
defined in Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate Loan,
the period commencing on the date specified by the Borrower pursuant
to Section 2.1(b) and ending 1, 2, 3 or 6 months thereafter, as
specified by the Borrower in the applicable Request for Loan;
provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a
day that is not a Eurodollar Banking Day shall be
extended to the next succeeding Eurodollar Banking Day
unless such Eurodollar Banking Day falls in another
calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking
Day; and
(c) No Eurodollar Period shall extend beyond the Maturity
Date.
"Eurodollar Rate" means, with respect to any Eurodollar
Rate Loan, the average interest rate per annum (determined solely by
the Administrative Agent and rounded upward to the next 1/100 of 1%)
at which deposits in dollars are offered to prime banks by the
Reference Banks in the Eurodollar Market at or about 10:00 a.m.
London time, two (2) Eurodollar Banking Days before the first day of
the applicable Eurodollar Period in an aggregate amount approximately
equal to the amount of the Eurodollar Rate Loan to be made by such
Reference Bank and for a period of time comparable to the number of
days in the applicable Eurodollar Period; provided that, if one
Reference Bank is unable to provide its offered quotation to the
Administrative Agent, the Eurodollar Rate shall be determined on the
basis of the rates quoted by the remaining Reference Bank. The
determination of the Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of manifest error.
"Eurodollar Rate Advance" means an Advance made hereunder
that bears interest as set forth in Section 3.1(c) and designated as
a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder that
bears interest as set forth in Section 3.1(c) and designated as a
Eurodollar Rate Loan in accordance with Article 2.
"Eurodollar Reserve Percentage" means, with respect to any
Eurodollar Rate Loan, the percentage applicable as of the date of
determination of the Eurodollar Rate representing the aggregate
reserve requirements of any Bank (disregarding any offsetting amounts
that may be available to such Bank to decrease such requirements to
the extent that such offsetting amounts arose out of transactions
other than those contemplated by this Agreement) under Regulation D
and any other applicable Laws with respect to Eurodollar Obligations
in an aggregate amount equal to the amount of such Bank's Pro Rata
Share of such Eurodollar Rate Loan and for a time period comparable
to the number of months in the applicable Eurodollar Period. The
determination by any Bank of any applicable Eurodollar Reserve
Percentage shall be presumed correct in the absence of manifest
error.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing Loan Documents" means the loan documents executed
in connection with that certain Credit Agreement dated as of November
15, 1991, as amended, between the Company, the borrowing subsidiaries
therein named, the lenders therein named, Swiss Bank Corporation, New
York Branch, as issuing bank and Swiss Bank Corporation, New York
Branch and Citicorp USA, Inc., as co-agents for themselves and such
lenders.
"Fiscal Quarter" means the fiscal quarter of the Company
consisting of a three month fiscal period ending on each March 31,
June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of the Company
consisting of a twelve month fiscal period ending on each December 31.
"Generally Accepted Accounting Principles" means, as of any
date of determination, accounting principles set forth as "generally
accepted" in then currently effective Statements of the Auditing
Standards Board of the American Institute of Certified Public
Accountants, or, if no such Statements are then in effect, that are
then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States
of America. The term "Generally Accepted Accounting Principles"
shall be read in each instance as if the words "consistently applied"
followed immediately thereafter, meaning that the accounting
principles applied are consistent in all material respects (except
for changes concurred in by the Company's independent public
accountants) to those applied at prior dates or for prior periods.
"Governmental Agency" means (a) any foreign, federal,
state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or
public body, (c) any court or administrative tribunal or (d) with
respect to any Person, any arbitration tribunal or other
nongovernmental authority to whose jurisdiction that Person has
consented.
"Indebtedness" means, as to any Person, (a) all
indebtedness of such Person for borrowed money, (b) that portion of
the obligations of such Person under Capital Leases which is properly
recorded as a liability on a balance sheet of that Person prepared in
accordance with Generally Accepted Accounting Principles, (c) to the
extent of the outstanding Indebtedness thereunder, any obligation of
such Person that is evidenced by a promissory note or other
instrument representing an extension of credit to such Person,
whether or not for borrowed money, (d) any obligation of such Person
for the deferred purchase price of Property or services (other than
trade or other accounts payable in the ordinary course of business),
(e) any obligation of such Person of the nature described in clauses
(a), (b), (c) or (d) above that is secured by a Lien on assets of
such Person, whether or not that Person has assumed such obligation
or whether or not such obligation is non-recourse to the credit of
such Person, but only to the extent of the fair market value of the
assets so subject to the Lien, (f) obligations of such Person arising
under acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (g) any obligation of such Person
to reimburse the issuer of any letter of credit issued for the
account of such Person upon which a draw has been made and (h) in the
case of the Company, any obligations of the Company under a Swap
Agreement. As of any date of determination, the amount of the
Company's Indebtedness pursuant to any Swap Agreement shall be equal
to 1% of the notional amount of that Swap Agreement times the number
of years then remaining in the term of that Swap Agreement.
"Intangible Assets" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
including customer lists, goodwill, computer software, copyrights,
trade names, trademarks, patents, unamortized deferred charges,
unamortized debt discount, capitalized research and development costs
and other intangible assets.
"Interest Charges" means, as of the last day of any fiscal
period, the sum of (a) all interest, fees, charges and related
expenses paid or payable (without duplication) for that fiscal period
to a lender in connection with borrowed money or the deferred
purchase price of assets that is treated as interest in accordance
with Generally Accepted Accounting Principles excluding interest paid
or payable (without duplication) for that fiscal period on any
intercompany loans, plus (b) the portion of rent paid or payable
(without duplication) for that fiscal period under Capital Leases
that should be treated as interest in accordance with Generally
Accepted Accounting Principles.
"Interest Charge Coverage Ratio" means, as of the last day
of any Fiscal Quarter, the ratio of (a) Adjusted Net Income for the
fiscal period consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters plus (i) Interest Charges of
the Company and its Consolidated Subsidiaries for such fiscal period,
plus (ii) depreciation and amortization expense of the Company and
its Consolidated Subsidiaries for such fiscal period, plus (iii)
provisions for taxes based on income of the Company and its
Consolidated Subsidiaries for such fiscal period, to (b) Interest
Charges of the Company and its Consolidated Subsidiaries for such
fiscal period.
"Interest Period" means (a) with respect to any Eurodollar
Rate Loan, the related Eurodollar Period, and (b) with respect to any
Base Rate Loan, the related Base Rate Period.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by means of
purchase or other acquisition of capital stock or other Securities of
any other Person or by means of loan, advance, capital contribution,
guaranty or other debt or equity participation or interest, or
otherwise, in any other Person, including any partnership and joint
venture interests of such Person in any other Person. "Investment"
shall include (a) a repurchase by the Company of its Common Stock,
(b) all payments by the Company or any Subsidiary to any Person as a
buyout of royalty obligations to that Person and (c) all acquisitions
by the Company or any Subsidiary of technology and/or distribution
rights. The amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in
the value of such Investment.
"Issuing Bank" means, as to each Tranche A Letter of
Credit, the Tranche A Issuing Bank and as to each Tranche B Letter of
Credit, the Tranche B Issuing Bank.
"Laws" means, collectively, all foreign, federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and
administrative or controlling precedents of any Governmental Agency.
"LC Issuance Fee" means a fee payable to the Issuing Banks
as provided in Section 3.4.
"LC Reimbursement Fee" means a fee payable to the
Administrative Agent, for the pro rata benefit of the Banks, as
provided in Section 3.5.
"Letters of Credit" means the Tranche A Letters of Credit
and/or the Tranche B Letters of Credit, as the context may require.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether voluntarily incurred
or arising by operation of Law or otherwise, affecting any Property,
including any agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or agreement to
give any financing statement (other than a precautionary financing
statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable
Law of any jurisdiction with respect to any Property.
"Loan" means any group of Committed Advances made at any
one time by the Banks pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the
Notes, any Request for Loan, any Agreement to Participate, any Letter
of Credit, any Request for Letter of Credit, any Competitive Bid
Request and any other certificates or agreements heretofore or
hereafter executed by a Senior Officer of any Borrower in connection
with this Agreement and delivered by any Borrower to the
Administrative Agent, an Issuing Bank or any Bank, in each case
either as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"Majority Banks" means, as of any date of determination,
Banks whose aggregate Pro Rata Shares are at least 51% of the
Commitment then in effect or if the Commitment is not then in
effect, Banks to which at least 51% of the aggregate Total
Outstandings is owed.
"Material Adverse Effect" means a circumstance or set of
circumstances or events affecting the business, operations or
condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, that have a material adverse effect,
individually or in the aggregate, upon the ability (i) of the Company
and its Subsidiaries, taken as a whole, to perform under the Loan
Documents or (ii) of any of the Banks to enforce the Obligations
under the Loan Documents.
"Maturity Date" means either the Tranche A Maturity Date or
the Tranche B Maturity Date, as the context requires.
"Multiemployer Plan" means a "multiemployer plan", as
defined in Section 3(37) of ERISA, to which the Company or any of its
ERISA Affiliates is contributing, or ever has contributed, or to
which the Company or any of its ERISA Affiliates has, or ever has
had, an obligation to contribute.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of the Company and its Subsidiaries for that
period, determined in accordance with Generally Accepted Accounting
Principles; provided that there shall be excluded from Net Income (i)
any income or loss of a Person accrued prior to the date upon which
such Person, or the assets of such Person, was acquired by or merged
into the Company or any of its Subsidiaries; (ii) any income of a
Subsidiary of the Company to the extent that declaration or payment
of dividends or other Distributions by that Subsidiary is not
permitted by any Contractual Obligation or Requirement of Law
applicable to that Subsidiary; (iii) any charges taken in respect of
payments to any Person as a buyout of royalty obligations to that
Person; and (iv) any charges taken in connection with the acquisition
of technology and/or distribution rights.
"Notes" means, collectively, the Committed Advance Notes
and the Competitive Advance Notes.
"Obligations" means all present and future obligations of
every kind or nature of the Borrowers at any time and from time to
time owed to the Co-Arrangers, the Administrative Agent, the Issuing
Banks or the Banks or any one or more of them under any one or more
of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well as
obligations of payment, and including interest that accrues after the
commencement of any proceeding under any Debtor Relief Law by or
against the Company or any Subsidiary of the Company.
"Other Taxes" means any present or future stamp or
documentary taxes and any other excise or property taxes, or similar
charges or levies, which arise from any payment made pursuant to this
Agreement or under any Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Pension Plan" means any Employee Benefit Plan other than a
Multiemployer Plan, that is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction or maintenance
of real property, or Liens incident to construction or maintenance of
real property, now or hereafter filed of record for which adequate
reserves have been set aside and which are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the obligations secured by
such Liens, no such real property is subject to a material risk of
loss or forfeiture;
(b) Liens for taxes and assessments on real property which
are not yet past due, or Liens for taxes and assessments on real
property for which adequate reserves have been set aside and are
being contested in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of non-payment of the
obligations secured by such Liens, no such real property is subject
to a material risk of loss or forfeiture;
(c) easements, exceptions, reservations, or other
agreements granted or entered into after the date hereof for the
purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting real property which in the aggregate do not materially
burden or impair the fair market value or use of such real property
for the purposes for which it is or may reasonably be expected to be
held;
(d) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations or duties under
Law to any Governmental Agency with respect to, the use of any real
property;
(e) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations or duties under
Law to any Governmental Agency with respect to, any right, power,
franchise, grant, license, or permit;
(f) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
real property;
(g) statutory Liens, other than those described in clauses
(a) or (b) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being
contested in good faith by appropriate proceedings, provided that, if
delinquent, adequate reserves have been set aside with respect
thereto and, by reason of nonpayment, no Property is subject to a
material risk of loss or forfeiture;
(h) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(i) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business to which the Company or a Subsidiary is a
party as lessee, provided the aggregate value of all such pledges and
deposits in connection with any such lease does not at any time
exceed 16-2/3% of the annual fixed rentals payable under such lease;
(j) Liens consisting of deposits of Property to secure
statutory obligations of the Company or a Subsidiary of the Company
in the ordinary course of its business;
(k) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds in proceedings to which
the Company or a Subsidiary of the Company is a party in the ordinary
course of its business, but not in excess of $10,000,000; and
(l) purchase money security interests or mortgages taken
or retained by a seller of collateral to secure all or part of its
purchase price.
"Person" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business
association, tribe, firm, joint venture, Governmental Agency, or
otherwise.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor thereto).
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Bank, with
respect to the Tranche A Commitment and the Tranche B Commitment, and
any Loan made under any portion of the Commitment, the percentage set
forth opposite the name of that Bank and that portion of the
Commitment on Schedule 2.1.
"Reference Banks" means Citibank, N.A. and Swiss Bank
Corporation, New York Branch.
"Regulation D" means Regulation D, as at any time amended,
of the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended,
of the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Request for Letter of Credit" means a written request for
a Letter of Credit substantially in the form of Exhibit H, together
with the standard form of application for letter of credit used by
the applicable Issuing Bank, signed by a Senior Officer of the
Borrower and properly completed to provide all information required
to be provided therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit I, signed by a Senior Officer of
the Borrower and properly completed to provide all information
required to be included therein.
"Requirement of Law" means, as to any Person, the articles
or certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any Law,
or judgment, award, decree, writ or determination of a Governmental
Agency, in each case applicable to or binding upon such Person or any
of its Property or to which such Person or any of its Property is
subject.
"Responsible Official" means (a) when used with reference
to a Person other than an individual, any corporate officer of such
Person, general partner of such Person, corporate officer of a
corporate general partner of such Person, or corporate officer of a
corporate general partner of a partnership that is a general partner
of such Person, or any other responsible official thereof duly acting
on behalf thereof, and (b) when used with reference to a Person who
is an individual, such Person. Any document or certificate hereunder
that is signed or executed by a Responsible Official of a Person
shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of
that Person.
"Securities" means any capital stock, share, voting trust
certificate, bond, debenture, note or other evidence of indebtedness,
limited partnership interest, or any warrant, option or other right
to purchase or acquire any of the foregoing.
"Senior Officer" means the (a) chief executive officer, (b)
chief operating officer, (c) chief financial officer, (d) corporate
controller, or (e) treasurer, in each case whatever the title
nomenclature may be, of the Person designated.
"Shareholders' Equity" means, as of any date of
determination, shareholders' equity as of that date determined in
accordance with Generally Accepted Accounting Principles; provided
that there shall be excluded from Shareholders' Equity any amount
attributable to capital stock that is, directly or indirectly,
required to be redeemed or repurchased by the issuer thereof at a
specified date or upon the occurrence of specified events or at the
election of the holder thereof.
"Subsidiary" means, as of any date of determination and
with respect to any Person, any corporation, partnership or joint
venture, whether now existing or hereafter organized or acquired: (a)
in the case of a corporation, of which a majority of the securities
having ordinary voting power for the election of directors or other
governing body (other than securities having such power only by
reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of
such Person, or (b) in the case of a partnership
or joint venture, of which such Person or a Subsidiary of such
Person is a general partner or joint venturer or of which a majority
of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its
Subsidiaries, excluding any partnership or joint venture over which
the Person or Subsidiary of such Person does not exercise actual
control.
"Swap Agreement" means a written agreement between the
Company and one or more financial institutions providing for "swap",
"collar" or other interest rate protection (other than "caps") with
respect to any Indebtedness.
"Tangible Net Worth" means, as of any date of
determination, the Shareholders' Equity of the Company and its
Consolidated Subsidiaries on that date, minus the book value of any
Intangible Assets of the Company and its Consolidated Subsidiaries on
that date.
"Taxes" means any and all present and future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to
any payment by any Borrower pursuant to this Agreement or under any
other Loan Document, and all liabilities with respect thereto,
excluding (i) taxes imposed on the net income of any Bank or the
Administrative Agent, and franchise or similar taxes imposed on any
Bank or the Administrative Agent, by a jurisdiction under the laws of
which such Bank or the Administrative Agent, as the case may be, is
organized or in which its principal executive office is located or,
in the case of each Bank, in which its applicable lending office is
located and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments but only to the extent that
such Bank is subject to United States withholding tax at the time
such Bank first becomes a party to this Agreement.
"Total Outstandings" means, as of any date of
determination, the sum on that date of (a) the aggregate principal
Indebtedness evidenced by the Notes, plus (b) the aggregate then
undrawn portion of Letters of Credit which are issued and
outstanding, plus (c) the aggregate unreimbursed drawings under
Letters of Credit.
"Tranche A Commitment" means (A) the aggregate commitment
of the Banks (i) to make Committed Advances pursuant to Section
2.1(a) in an aggregate principal amount up to $150,000,000 and (ii)
to purchase an undivided interest in any Tranche A Letters of Credit
issued pursuant to Section 2.6(a)(2), and (B)
the commitment of the Tranche A Issuing Bank to issue Tranche A
Letters of Credit in face amounts at any one time not exceeding the
amount permitted by Section 2.6(a)(2).
"Tranche A Issuing Bank" means Swiss Bank Corporation, New
York Branch.
"Tranche A Letters of Credit" means any letters of credit
issued by the Tranche A Issuing Bank pursuant to Section 2.6(a)(2),
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Tranche A Maturity Date" means June 23, 2000, unless
otherwise extended pursuant to Section 2.8.
"Tranche B Commitment" means the aggregate commitment of
Swiss Bank Corporation, New York Branch, as a Tranche B Issuing Bank,
to issue Tranche B Letters of Credit in face amounts at any one time
not exceeding $30,000,000 and of ABN AMRO Bank N.V., Los Angeles
International Branch, as a Tranche B Issuing Bank, to issue Tranche B
Letters of Credit in face amounts at any one time not exceeding
$43,000,000 and the aggregate commitment of the Banks to purchase an
undivided interest in any such Tranche B Letters of Credit up to an
aggregate principal amount of $73,000,000.
"Tranche B Issuing Bank" means either ABN AMRO Bank N.V.,
Los Angeles International Branch, or Swiss Bank Corporation, New York
Branch.
"Tranche B Letters of Credit" means any letters of credit
issued by either Tranche B Issuing Bank pursuant to Section
2.6(a)(1), either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Tranche B Maturity Date" means December 5, 1997.
"type" when used with respect to any Loan or Advance, means
the designation of whether such Loan or Advance is a Base Rate Loan
or Advance, a Eurodollar Rate Loan or Advance or a Competitive
Advance.
"Unused Portion" means the Commitment, the Tranche A
Commitment or the Tranche B Commitment, as the context requires,
less Total Outstandings as to the Commitment, the Tranche A
Commitment or the Tranche B Commitment, as the case may be.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any
defined term used in the singular shall refer to any one or more of
the members of the relevant class.
1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed in
conformity with, and all financial data required to be submitted by
this Agreement shall be prepared in conformity with, Generally
Accepted Accounting Principles applied on a consistent basis, except
as otherwise specifically prescribed herein and except for changes
concurred in by the Company's independent public accountants. In the
event that Generally Accepted Accounting Principles change during the
term of this Agreement such that the financial covenants contained in
Sections 6.7 and 6.8 would then be calculated in a different manner
or with different components, (a) the Borrowers and the Banks agree
to negotiate to amend this Agreement in such respects as are
necessary to conform those covenants as criteria for evaluating the
Company's financial condition to substantially the same criteria as
were effective prior to such change in Generally Accepted Accounting
Principles and (b) the Company shall be deemed to be in compliance
with the financial covenants contained in such Sections during the 60
day period following any such change in Generally Accepted Accounting
Principles if and to the extent that the Company would have been in
compliance therewith under Generally Accepted Accounting Principles
as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be
maintained by the Company pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of
places by which such ratio is expressed in this Agreement and
rounding the result up or down to the nearest number (with a round-up
if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to
this Agreement, either as originally existing or as the same may from
time to time be supplemented, modified or amended, are incorporated
herein by this reference. A matter disclosed on any Schedule shall
be deemed disclosed on all Schedules.
1.6 References to "the Company and its Subsidiaries". Any
reference herein to "the Company and its Subsidiaries" or the like
shall refer solely to the Company during such times, if any, as the
Company shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females;
feminine terms also apply to males. The term "including" is by way
of example and not limitation.
ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 Committed Advances - General
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing
Date through the Tranche A Maturity Date, each Bank shall,
according to its Pro Rata Share of the Tranche A Commitment,
make Committed Advances to the Borrowers under the Tranche A
Commitment in such amounts as the Borrowers may request that do
not exceed in the aggregate at any one time outstanding the
amount of that Bank's Pro Rata Share of the Tranche A
Commitment; provided that, giving effect to the Loan of which
such Advance is a part, (i) the Total Outstandings shall not
exceed the Commitment and (ii) the sum of all Committed Advances
then outstanding plus the sum of all Competitive Advances then
outstanding plus the face amount of all Tranche A Letters of
Credit then outstanding plus the sum of all unreimbursed
drawings under Tranche A Letters of Credit shall not exceed the
Tranche A Commitment. Subject to the limitations set forth
herein, the Borrowers may borrow and repay under the Tranche A
Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan under this
Section 2.1 shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan, (ii) type of
Loan, (iii) amount of such Loan and (iv) Interest Period for
such Loan. Unless the Administrative Agent has notified, in its
sole and absolute discretion, the Borrowers to the contrary, a
Loan may be requested by telephone by an Assistant Treasurer or
Senior Officer of the Borrower, in which case the Borrower shall
promptly confirm such request
by transmitting a telecopy of, or at the Administrative Agent's
request by mailing, a Request for Loan executed by a Senior
Officer of such Borrower conforming to the preceding sentence to
the Administrative Agent.
(c) Promptly following receipt of a Request for Loan (or
the receipt of a substitute request permitted under the second
sentence of Section 2.1(b)), the Administrative Agent shall
notify each Bank by telephone or telecopier (the method of
notice shall be at the Administrative Agent's option) of the
date and type of the Loan, the applicable Interest Period and
the amount of that Bank's Pro Rata Share of the Loan. Not later
than 2:00 p.m., New York time, on the date specified for any
Loan subject to the provisions of Sections 2.2 and 2.3, each
Bank shall make its Pro Rata Share of the Loan in immediately
available funds available to the Administrative Agent at the
Administrative Agent's Office. Upon fulfillment of the
applicable conditions set forth in Article 8 and subject to the
provisions of Sections 2.2 and 2.3, all Advances shall be
credited in immediately available funds to the Designated
Deposit Account.
(d) Each Loan under the Tranche A Commitment shall be in a
minimum amount of $3,000,000 and multiples of $1,000,000 in
excess of that amount.
(e) The Committed Advances made by each Bank under its Pro
Rata Share of the Tranche A Commitment shall be evidenced by
that Bank's Committed Advance Note in the form set forth as
Exhibit B.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if
applicable) has been made within requisite notice periods set
forth in Sections 2.2 and 2.3 in connection with a Loan which,
if made, would not increase the outstanding principal
Indebtedness evidenced by the Notes, then the Borrower shall be
deemed to have requested a Base Rate Loan in an amount equal to
the amount necessary to cause the outstanding principal
Indebtedness evidenced by the Notes to remain the same and,
subject to Section 8.3, the Banks shall make the Advances
necessary to make such Loan notwithstanding Sections 2.1(b) and
2.2.
2.2 Base Rate Loans. Each request by a Borrower for a
Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 11:00 a.m., New
York time, on the first day of the applicable Base Rate Period. All
Loans shall constitute Base Rate Loans unless properly designated as
Eurodollar Rate Loans pursuant to Section 2.3. Each Base Rate Loan
shall consist of Committed Advances.
2.3 Eurodollar Rate Loans.
(a) Each request by a Borrower for a Eurodollar Rate Loan
shall be made pursuant to a Request for Loan (or telephonic
request for Loan referred to in the second sentence of Section
2.1(b), if applicable) received by the Administrative Agent, at
the Administrative Agent's Office, not later than 1:00 p.m., New
York time, at least three (3) Eurodollar Banking Days before the
first day of the applicable Eurodollar Period.
(b) On the second Eurodollar Banking Day before the first
day of the applicable Eurodollar Period, the Administrative
Agent shall determine the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of manifest
error) and prior to 1:00 p.m., New York time on that same day
shall give notice of the same to the Borrower and the Banks by
telephone or telecopier (the method of notice shall be at the
Administrative Agent's option).
(c) Unless all of the Banks otherwise consent, no
Eurodollar Rate Loan may be requested during the continuance of
a Default or Event of Default.
(d) Each Eurodollar Rate Loan shall consist of Committed
Advances.
(e) Prior to the submission of a Request for Loan with
respect to a Eurodollar Rate Loan, any Borrower may request the
Administrative Agent to provide a non-binding estimate of the
Eurodollar Rate that would then apply in the event the Borrower
submitted a Request for Loan.
2.4 Competitive Advances.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the day
that is thirty-one (31) days prior to the Tranche A Maturity
Date, each Bank may in its sole and absolute discretion make
Competitive Advances to a Borrower pursuant to this Section in
such principal amounts as the Borrower may request pursuant to a
Competitive Bid Request, provided that, after giving effect to
the making of each such Competitive Advance, (i) the aggregate
principal amount of the Indebtedness evidenced by the
Competitive Advance Notes and the Committed Advance Notes shall
not exceed the Tranche A Commitment, (ii) the sum of all
Committed Advances then outstanding plus the sum of all
Competitive Advances then outstanding plus the face amount of
all Tranche A Letters of Credit then outstanding plus the sum of
all unreimbursed drawings under Tranche A Letters of Credit
shall not exceed the Tranche A Commitment, and (iii) Total
Outstandings shall not exceed the Commitment. Any Bank may
submit a Competitive Bid in an amount greater than, less than or
equal to its respective Pro Rata Share of the Tranche A
Commitment, up to the amount of the Competitive Bid Request.
(b) Each Borrower shall request Competitive Advances by
submitting a Competitive Bid Request to the Administrative Agent
by telephone or telecopier, to be received by the Administrative
Agent not later than 12:00 p.m., New York time, one Banking Day
prior to the date of the proposed Competitive Advance, which
Competitive Bid Request shall specify the relevant date, amount
and maturity for the proposed Competitive Advance and shall
otherwise be completed to the satisfaction of the Administrative
Agent.
(c) Each Competitive Bid Request shall be made for a
Competitive Advance with a maturity of not less than seven (7)
nor more than 180 days. No Competitive Bid Request may be made
for a Competitive Advance which has a maturity date which is
later than the Banking Day immediately preceding the Tranche A
Maturity Date.
(d) Each Competitive Bid Request shall be in a minimum
amount of $3,000,000 and multiples of $1,000,000 in excess
thereof.
(e) Immediately following receipt of a Competitive Bid
Request (or a telephonic request in accordance with Section
2.4(b)), the Administrative Agent shall notify each Bank by
telephone or telecopier (the method of notice shall be at the
Administrative Agent's option) of the relevant date, amount and
maturity and of the other relevant terms of the requested
Competitive Advance.
(f) Each Bank receiving a Competitive Bid Request may, in
its sole and absolute discretion, make or not make a Competitive
Bid responsive to the Competitive Bid Request. For purposes of
this paragraph, a Competitive Bid shall be deemed responsive if
it offers a Competitive Advance which is of an amount which is
less than or equal to that specified in the Competitive Bid
Request and if it comports in all other respects to the
Competitive Bid Request. If the Bank which is then
Administrative Agent determines, in its sole discretion, to
submit a Competitive Bid with respect to a Competitive Bid
Request, it shall submit its Competitive Bid to the Borrower by
telecopier not later than 10:15 a.m., New York time, on the
Banking Day of the proposed Competitive Advance. Each other
Competitive Bid shall be submitted to the Administrative Agent
via telecopier not later than 10:45 a.m., New York time, on the
date of the requested Competitive Advance, and the
Administrative Agent shall promptly thereafter notify the
Borrower by telephone or telecopier (the method of notification
shall be at the Administrative Agent's option) of the
Competitive Bids. The Borrower shall maintain the
confidentiality of any Competitive Bid made by the
Administrative Agent pending receipt by the Borrower of all
other Competitive Bids.
(g) Each Competitive Bid shall specify the stated fixed
interest rate (on the basis of a year of 360 days times the
actual number of days elapsed). A Competitive Bid once
submitted to a Borrower shall be irrevocable prior to the time
that the Borrower is required to accept such Competitive Bid as
described in clause (h) below.
(h) A Borrower may accept or reject any Competitive Bid in
its sole and absolute discretion at any time prior to 11:15
a.m., New York time, on the Banking Day of the proposed
Competitive Advance; provided that (a) acceptance of a
Competitive Bid shall be by telephone, promptly confirmed by the
Borrower in writing by telecopier communicated to a Responsible
Official of the Administrative Agent, (which shall immediately
notify the relevant Bank as provided in clause (i) below) (b)
the Borrower may not accept any
Competitive Bid which quotes an interest rate which is higher
than a rejected Competitive Bid unless the rejected Competitive
Bid is for an amount which is less than that specified in the
applicable Competitive Bid Request and (c) without the consent
of the Bank offering a Competitive Bid, the Borrower may not
accept any fractional portion of the amount specified in that
Competitive Bid.
(i) A Bank whose Competitive Bid has been accepted by a
Borrower shall make the Competitive Advance in accordance with
the Competitive Bid Request and with its Competitive Bid,
subject to the applicable conditions set forth in this Agreement
and during the period when such Competitive Advance is
outstanding, the Pro Rata Share of the Tranche A Commitment of
each Bank shall be deemed reduced by its Pro Rata Share of the
principal amount of each such Competitive Advance.
(j) Promptly upon acceptance of a Competitive Bid, the
Administrative Agent shall notify each relevant Bank by
telephone or telecopier of the acceptance of that Bank's
Competitive Bid and shall promptly notify each Bank whose
Competitive Bid is not accepted that its Competitive Bid has not
been accepted. Not later than 2:00 p.m., New York time, on the
date of the Competitive Advance, and upon fulfillment of the
applicable conditions set forth in Article 8, the Bank shall
fund the Competitive Advance in immediately available funds to
the Administrative Agent at the Administrative Agent's Office.
Upon receipt of such funds, the Administrative Agent shall
promptly credit the amount of the Competitive Advance to the
Designated Deposit Account.
(k) Unless all of the Banks otherwise consent, (i) no
Competitive Advances may be requested during the continuance of
an Event of Default, and (ii) not more than twelve (12)
Competitive Advances may be outstanding at any time.
(l) The Competitive Advances made by each Bank shall be
evidenced by that Bank's Competitive Advance Note.
2.5 Voluntary Reduction of Commitment. The Company shall
have the right, at any time and from time to time, without penalty or
charge, upon at least two (2) days' prior written notice to the
Administrative Agent, to voluntarily reduce, permanently and
irrevocably, in a minimum amount of $5,000,000 and multiples of
$1,000,000 in excess thereof, or to terminate, all or
a portion of the then Unused Portion of the Commitment; provided
that any such reduction or termination shall be accompanied by a
designation of whether the Tranche A Commitment or the Tranche B
Commitment is to be reduced or terminated and if all or a portion of
the Tranche A Commitment is being terminated, payment of all accrued
and unpaid commitment fees with respect to the portion of the Tranche
A Commitment being reduced or terminated.
2.6 Letters of Credit.
(a) (1) As of the date hereof, Swiss Bank Corporation,
New York Branch has issued Tranche B Letters of Credit in the
aggregate amount of $30,000,000, which Tranche B Letters of
Credit have an expiry date of April 30, 1997. Subject to the
terms and conditions hereof, at any time and from time to time
from the Closing Date through the day that is thirty (30) days
before the Tranche B Maturity Date, ABN AMRO Bank N.V., Los
Angeles International Branch shall issue such Tranche B Letters
of Credit as a Borrower may request by delivering a Request for
Letters of Credit to ABN AMRO Bank N.V., Los Angeles
International Branch; provided that, giving effect to such
Tranche B Letters of Credit, (i) the aggregate effective face
amounts of all outstanding Tranche B Letters of Credit will not
exceed the Tranche B Commitment, (ii) Total Outstandings will
not exceed the Commitment and (iii) the aggregate face amounts
of all outstanding Tranche B Letters of Credit issued by Swiss
Bank Corporation, New York Branch, shall not exceed $30,000,000
and the aggregate face amounts of all outstanding Tranche B
Letters of Credit issued by ABN AMRO Bank N.V., Los Angeles
International Branch, shall not exceed $43,000,000. In no event
shall the term of any Tranche B Letter of Credit extend beyond
the Tranche B Maturity Date. The initial Tranche B Letter of
Credit issued by ABN AMRO Bank N.V., Los Angeles International
Branch may be issued in a minimum amount of $5,000,000 and
multiples of $1,000,000 in excess thereof. Any subsequent
Tranche B Letters of Credit issued by ABN AMRO Bank N.V., Los
Angeles International Branch may be issued in a minimum amount
of $5,000,000 and multiples of $1,000,000 in excess thereof.
The issuance of any Tranche B Letter of Credit shall constitute
irrevocable usage of the Tranche B Commitment in the amount of
such Tranche B Letter of Credit. If any Tranche B Letter of
Credit is reduced or retired, or expires or is terminated or
cancelled, the Tranche B Commitment shall
not be reinstated by the amount of any such reduction,
retirement, expiration, termination or cancellation.
(2) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the
date that is thirty (30) days before the Tranche A Maturity
Date, the Tranche A Issuing Bank shall issue such Tranche A
Letters of Credit as a Borrower may request by delivering a
Request for Letters of Credit to the Tranche A Issuing Bank;
provided that, giving effect to such Tranche A Letter of Credit,
(i) the aggregate effective face amounts of all outstanding
Tranche A Letters of Credit will not exceed $50,000,000, (ii)
the sum of all Committed Advances then outstanding plus the sum
of all Competitive Advances then outstanding plus the face
amount of all Tranche A Letters of Credit then outstanding plus
the sum of all unreimbursed drawings under Tranche A Letters of
Credit shall not exceed the Tranche A Commitment, and (iii)
Total Outstandings will not exceed the Commitment. Tranche A
Letters of Credit issued under the Tranche A Commitment may be
issued for terms up to five (5) years from the date of issuance
but in no event shall the term of any such Tranche A Letter of
Credit extend beyond the Tranche A Maturity Date. Each Tranche
A Letter of Credit shall be in a minimum amount of $500,000.
The issuance of any Tranche A Letter of Credit shall constitute
usage of the Tranche A Commitment. Subject to the limitations
set forth herein, the Borrowers may request Tranche A Letters of
Credit, reimburse drawings under Tranche A Letters of Credit and
request further Tranche A Letters of Credit without premium or
penalty.
(b) Each Request for Letter of Credit shall be submitted
to the applicable Issuing Bank at least three (3) Banking Days
prior to the date when the issuance of a Letter of Credit is
requested. Upon issuance of a Letter of Credit, the applicable
Issuing Bank shall promptly notify the Banks of the amount and
terms thereof. Any Letter of Credit issued shall conform with
the applicable Issuing Bank's policies regarding form and
substance.
(c) Upon the issuance of a Letter of Credit, each Bank
shall be deemed to have irrevocably purchased from the
applicable Issuing Bank, without recourse to or warranty from
such Issuing Bank, a pro rata undivided participation in the
Letter of Credit, in an amount equal to that Bank's Pro Rata
Share of the Tranche A Commitment or Tranche B Commitment, as
the case may be. Without limiting the scope and nature of each
Bank's participation in any Letter of Credit, to the extent that
an Issuing Bank has not been reimbursed by the Borrower, in
accordance with Section 2.6(d), for any payment made by such
Issuing Bank under any Letter of Credit, each Bank shall
reimburse such Issuing Bank promptly upon demand for the amount
of such payment in accordance with its Pro Rata Share of the
Tranche A Commitment or Tranche B Commitment, as the case may
be. The obligation of each Bank to so reimburse an Issuing Bank
shall be absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse an Issuing
Bank for the amount of any payment made by such Issuing Bank
under any Letter of Credit together with interest as hereinafter
provided.
(d) After any drawing on a Letter of Credit, such Issuing
Bank shall notify the Borrower and the Administrative Agent by
telephone or telecopier of such drawing by 2:00 p.m., New York
time, on the date such payment is to be made and the Borrower
shall reimburse such Issuing Bank, in immediately available
funds for any amount paid or to be paid by such Issuing Bank
under such Letter of Credit by 4:00 p.m., New York time on the
date of such notice.
(e) If the Borrower fails to make the payment required by
Section 2.6(d), the Administrative Agent shall notify the Banks
by telephone or telecopier (the method of notification shall be
at the Administrative Agent's option) of the unreimbursed amount
of such payment. Each Bank irrevocably and unconditionally
agrees (irrespective of the occurrence of an Event of Default or
any other circumstance) that it shall make available to the
Administrative Agent (for the account of the applicable Issuing
Bank) an amount equal to its respective participation in same
day funds, at the Administrative Agent's Office, not later than
the close of business (New York time) on the date notified by
the Administrative Agent. In the event that any Bank fails to
make available to the Administrative Agent the amount of such
Bank's participation in such Letter of Credit as provided above,
such Issuing Bank (through the Administrative Agent) shall be
entitled to recover such amount on demand from such Bank
together with interest thereon, for each day from the
date of such payment until the date such amount is paid to such
Issuing Bank, at the rate per annum equal to the Base Rate plus
1%; provided that if such failure is solely the result of an
administrative error (which determination shall be made by the
Administrative Agent in its sole discretion) or is solely the
result of the Bank receiving notice too late in the day to make
payment to the Administrative Agent on that day, then the
interest rate for the first day of such delay shall be the
overnight federal funds rate. Any amount made available by a
Bank to the Administrative Agent as such Bank's participation in
such Letter of Credit shall constitute a demand loan to the
Borrower bearing interest at a rate per annum equal to (i) from
the date of any payment made by the applicable Issuing Bank
through the date ten days after such payment, the Base Rate, and
(ii) thereafter, the Base Rate plus 2%; provided, that if a Bank
is prevented from making such demand loans by the provisions of
the United States Bankruptcy Code or otherwise, the amount so
paid to the Issuing Bank by such Bank shall constitute a funding
and purchase by it of a participation in such Letter of Credit
disbursement by the Issuing Bank and all obligations of the
Borrower with respect thereto, including interest thereon to the
extent accruing from the date of such purchase. The
Administrative Agent shall promptly pay to the applicable
Issuing Bank all funds paid by the Banks to reimburse such
Issuing Bank for the payment made by it under the Letter of
Credit.
(f) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit
shall be treated for the purposes of Article 8 the same as the
issuance of a new Letter of Credit.
(g) If, for any reason, a Bank fails to pay its liability
on a Letter of Credit in accordance with the provisions of
Section 2.6(e), then the applicable Issuing Bank shall be
automatically subrogated to the right of such defaulting Bank to
any prepayment, in full, of any loan created by virtue of a
drawing on such Letter of Credit, or such defaulting Bank's
right to any reimbursement by the Borrower with respect to any
drawing, or any other right of such defaulting Bank in
connection with or resulting from the drawing on such Letter of
Credit, prior to distribution of any payments hereunder to the
defaulting Bank.
(h) The obligation of the Borrowers to reimburse an
Issuing Bank for the amount of any payment made by such Issuing
Bank under any Letter of Credit, and the obligations of the
Banks under their respective participations under the Letters of
Credit, shall be absolute, unconditional, and irrevocable and
shall not be affected by any of the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(iii) the existence of any claim, setoff, defense,
or other rights which any Borrower may have at any time
against any Bank, any beneficiary of the Letter of Credit
(or any persons or entities for whom any such beneficiary
may be acting) or any other Person, whether in connection
with the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply
with the terms of the Letter of Credit;
(v) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of
Credit;
(vi) any failure or delay in notice of shipments or
arrival of any property;
(vii) any error in the transmission of any message
relating to a Letter of Credit not caused by such Issuing
Bank, or any delay or interruption in any such message;
(viii) any error, neglect or default of any
correspondent of any Bank in connection with a Letter of
Credit;
(ix) any consequence arising from acts of God, war,
insurrection, disturbances, labor disputes, emergency
conditions or other causes beyond the control of such
Issuing Bank;
(x) so long as such Issuing Bank in good faith
determines that the draft, contract or document appears to
comply with the terms of the Letter of Credit, the form,
accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to such
Issuing Bank in connection with a Letter of Credit; and
(xi) where such Issuing Bank has acted in good faith
and without gross negligence or willful misconduct and
observed general banking usage, any other circumstance
whatsoever.
(i) Each Issuing Bank shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6,
mutatis mutandis.
(j) The Tranche A Issuing Bank may in its sole discretion
replace any Bank with respect to such Bank's entire respective
Pro Rata Share of the Tranche A Commitment and/or Tranche B
Commitment, if the senior unsecured long-term debt rating of
such Bank or any bank controlling such Bank falls below Standard
& Poor's Ratings Group "A-" rating or Moody's Investors Service,
Inc. "A3" rating with a bank (which may be one or more of the
Banks) reasonably acceptable to the Company; provided, that
notwithstanding the foregoing any such replacement with respect
to any Bank's Pro Rata Share of the Tranche B Commitment shall
require the approval, in its sole discretion, of ABN AMRO Bank
N.V., Los Angeles International Branch. Any such replacement
shall be accomplished by an assignment by such replaced Bank of
its entire respective Pro Rata Share of the Tranche A Commitment
and/or Tranche B Commitment to the replacement Bank pursuant to
the provisions of Section 13.8. The Issuing Banks will promptly
notify each Bank of any such substitution.
(k) As between the Borrower and each Issuing Bank, the
Borrower assumes all risks of the acts and omissions of, or
misuse of any Letter of Credit by, the respective beneficiaries
of the Letters of Credit. In furtherance and not in limitation
of the foregoing, each Issuing Bank shall not be responsible:
(1) for the validity, genuineness or legal effect of any
document submitted by any party in connection with the issuance
of or any drawing under the Letters of Credit, even if it should
in fact prove to be in any or all respects invalid, fraudulent
or forged; (2) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (3) for errors in
interpretation of technical terms; (4) for the misapplication by
the beneficiary of any Letter of Credit of the proceeds of any
drawing under such Letter of Credit; provided that none of the
events set forth in the foregoing clauses (1) through (4) shall
have been caused by the gross negligence or wilful misconduct of
such Issuing Bank; and (5) for any consequences arising from
causes beyond the control of such Issuing Bank. None of the
above shall affect, impair, or prevent the vesting of any of the
Issuing Banks' rights or powers hereunder. In furtherance and
extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by an Issuing
Bank under or in connection with the Letters of Credit, if taken
or omitted in good faith, without gross negligence or willful
misconduct, shall not put such Issuing Bank under any resulting
liability to the Borrowers or the Banks.
(l) Each Issuing Bank shall have no obligation whatsoever
to make any factual or legal determinations as to the
correctness of any demand or payment under any Letter of Credit
strictly complying with the terms of such Letter of Credit
before such Issuing Bank makes any payment under the Letter of
Credit. The Borrowers and the Banks hereby waive (A) diligence,
presentment, demand, protest or notice of any kind, (B) any
requirement that an Issuing Bank exhaust any right or remedy
against the Borrowers, the Administrative Agent, any other
participant in the credit, or any other Person, and (C) any
claim or defense based on any time or other indulgence granted
to the Borrower, the Administrative Agent or any other Person
and any right of subrogation to any rights or remedies of an
Issuing Bank in respect of any of the Letters of Credit or any
defense that an Issuing Bank has impaired any such right of
subrogation.
(m) In the event that any payment made by or on behalf of
the Borrower pursuant to or in connection with any Letter of
Credit is rescinded or must otherwise be restored or returned to
the Borrower or other relevant party, as applicable, including
as a result of any insolvency, bankruptcy or reorganization or
similar proceedings in respect of the Borrower, the obligations
of the Banks under this Section 2.6(m) in respect of such
rescinded, restored or returned payment shall be reinstated in
full and the Banks shall be liable to indemnify the applicable
Issuing Bank hereunder as fully as if such payment had never
been made. The provision of this Section 2.6(m) shall survive
the payment of the obligations of the Borrowers under the
Letters of Credit.
(n) All amounts to be paid to an Issuing Bank by the Banks
under this Agreement shall be paid by the Banks to the
Administrative Agent for the account of such Issuing Bank,
without any set-off or counterclaim whatsoever and free and
clear of any without deduction for or on account of any taxes,
duties or other charges whatsoever, and without any liability
therefor.
2.7 Administrative Agent's Right to Assume Funds Available
for Advances. Unless the Administrative Agent shall have been
notified by any Bank no later than the Banking Day prior to the
funding by the Administrative Agent of any Loan that such Bank does
not intend to make available to the Administrative Agent such Bank's
Pro Rata Share of the total amount of such Loan, the Administrative
Agent may assume that such Bank has made such amount available to the
Administrative Agent on the date of the Loan and the Administrative
Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. Unless the Administrative Agent
shall have been notified by the appropriate Bank no later than one
hour prior to the funding by the Administrative Agent of any
Competitive Advance by the Administrative Agent on behalf of that
Bank such Bank does not intend to make available to the
Administrative Agent such Bank's Competitive Advance the
Administrative Agent may assume that such Bank has made 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 the Administrative Agent has made funds
available to the Borrower based on such assumptions and such
corresponding amount is not in
fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Bank, which demand shall be made in a
reasonably prompt manner. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent promptly shall notify the Borrower
and the Borrower shall pay such corresponding amount to the
Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Bank interest on such corresponding
amount in respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative
Agent, at a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by the
Administrative Agent to such Bank. Nothing herein shall be deemed to
relieve any Bank from its obligation to fulfill its Pro Rata Share of
the Commitment or to prejudice any rights that the Administrative
Agent or the Borrower may have against any Bank as a result of any
default by such Bank hereunder.
2.8 Extension of Tranche A Maturity Date. In the event
that: (a) the Company requests in writing no more than 90 days but
no less than 60 days prior to any anniversary of the Closing Date (an
"Anniversary Date") prior to the Tranche A Maturity Date that the
Tranche A Maturity Date be extended for one year; (b) each Bank shall
have determined in its sole discretion to consent to such extension;
and (c) the Administrative Agent shall have delivered a written
notice of such determination to the Company no less than 15 days
prior to such Anniversary Date, then the Tranche A Maturity Date
shall be extended for an additional one-year period. Any Bank that
shall not have indicated its determination under this Section 2.8 to
the Administrative Agent on or prior to the 15th day prior to such
Anniversary Date shall be deemed not to have consented to such
extension.
ARTICLE 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Loan and each Competitive
Advance from the date thereof until payment in full is made and
shall accrue and be payable at the rates set forth herein before
and after default, before and after maturity, before and after
judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue
interest to bear interest at the Default Rate to the fullest
extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan shall be due
and payable on the last day of the applicable Base Rate Period.
Except as otherwise provided in Section 3.9, the unpaid
principal amount of any Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Base Rate. Each change
in the interest rate hereunder shall take effect simultaneously
with the corresponding change in the Base Rate. Each change in
the Base Rate shall be effective as of 12:01 a.m., New York
time, on the Banking Day on which the change in the Base Rate is
announced, unless otherwise specified in such announcement, in
which case the change shall be effective as so specified.
(c) Interest accrued on each Eurodollar Rate Loan the
Eurodollar Period for which is three months or less shall be due
and payable on the last day of the applicable Eurodollar Period.
Interest accrued on each other Eurodollar Rate Loan shall be due
and payable on the date which is three months after the date
such Eurodollar Rate Loan was made and on the last day of the
Eurodollar Period. Except as otherwise provided in Section 3.9,
the unpaid principal amount of any Eurodollar Rate Loan shall
bear interest at a rate per annum equal to the Eurodollar Rate
for that Eurodollar Rate Loan plus the Applicable Percentage.
Each change in the Applicable Percentage shall be effective as
of the date of the public announcement or publication by
Standard & Poor's Ratings Group or Moody's Investors Service,
Inc. of a change in the Company's senior unsecured long-term
debt ratings. Each Bank claiming a right to payment of a
Eurodollar Reserve Percentage in connection with any Eurodollar
Rate Loan shall deliver to the Company and the Administrative
Agent a statement setting forth in reasonable detail the amount
of the Eurodollar Reserve Percentage and the calculation of the
increased amount payable by the Company in respect of that
Bank's Pro Rata Share of such Eurodollar Rate Loan. The Company
shall pay to the Administrative Agent, for the account of such
Bank, the amount of the Eurodollar Reserve Percentage set forth
in such Bank's statement together with each payment of interest
on the applicable Eurodollar Rate Loan.
(d) Interest accrued on each Competitive Advance shall be
due and payable on the maturity date of the Competitive Advance.
Except as otherwise provided in Section 3.9, the unpaid
principal amount of each Competitive Advance shall bear interest
at the rate specified in the relevant Competitive Bid.
(e) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each Loan shall be
payable on the last day of the Interest Period for such
Loan, and in any event on the Tranche A Maturity Date; and
(ii) the principal amount of each Competitive Advance
shall be payable on the maturity date of that Competitive
Advance.
(f) The Committed Advance Notes may, at any time and from
time to time, voluntarily be paid or prepaid in whole or in part
without premium or penalty, except that with respect to any
voluntary prepayment under this subsection, (i) any partial
prepayment shall be in minimum amount of $5,000,000 and
multiples of $1,000,000 in excess thereof, (ii) the
Administrative Agent shall have received written notice of any
prepayment by 11:00 a.m. (New York time) on the date of
prepayment (which shall be a Banking Day), in the case of a Base
Rate Loan, and by 1:00 p.m. (New York time) three (3) Banking
Days before the date of prepayment, in the case of a Eurodollar
Rate Loan, which notice shall identify the date and amount of
the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal shall be accompanied by payment of
interest accrued through the date of payment on the amount of
principal paid and (iv) in any event, any payment or prepayment
of all or any part of any Loan on a day other than the last day
of the applicable Interest Period shall be subject to Section
3.8(c).
(g) The Competitive Advance Notes may not be voluntarily
prepaid in whole or in part without the consent of the holder
thereof. In the event of any prepayment of the Competitive
Advance Notes in violation of this Section, the Company shall
pay to the affected Bank such amounts as are
necessary, in the reasonable estimation of that Bank, to
compensate that Bank for the effect of such prepayment.
3.2 Commitment Fee. On the last day of each Fiscal
Quarter and on the Tranche A Maturity Date and, if earlier, the date
of termination of the Tranche A Commitment in its entirety, the
Company shall pay to the Administrative Agent, for the account of
each Bank according to its Pro Rata Share of the Tranche A
Commitment, commitment fees equal to the Applicable Percentage times
the average daily Unused Portion of the Tranche A Commitment during
the Fiscal Quarter then ending. Each change in the Applicable
Percentage shall be effective on the date of the public announcement
or publication by Standard & Poor's Ratings Group or Moody's
Investors Service, Inc. of a change in the Company's senior unsecured
long-term debt ratings.
3.3 Co-Arranger Fees and Agency Fees. On the date of this
Agreement, the Company shall pay to the Co-Arrangers fees in the
amounts agreed upon by letter agreements dated the date hereof
between the Company and the Co-Arrangers. Such fees are for the sole
account of the Co-Arrangers and are fully earned upon receipt and
non-refundable. On the date of this Agreement and on each
anniversary thereof, the Company shall pay to the Administrative
Agent, agency fees in the amounts agreed upon by letter agreements
dated the date hereof between the Company and the Administrative
Agent. The agency fees are for the sole account of the
Administrative Agent and are fully earned upon receipt and non-
refundable.
3.4 LC Issuance Fee. The Company shall pay, on the last
day of each Fiscal Quarter, a LC Issuance Fee to the Administrative
Agent for the account of each Issuing Bank, in the amounts agreed
upon by letter agreements dated the date hereof between the Company
and each Issuing Bank. The LC Issuance Fees are for the sole account
of the applicable Issuing Bank and are fully earned upon receipt and
non-refundable.
3.5 LC Reimbursement Fee. The Company shall pay, on the
last day of each Fiscal Quarter, a LC Reimbursement Fee to the
Administrative Agent, for the pro rata benefit of the Banks in
accordance with their respective Pro Rata Shares of the Tranche A
Commitment and the Tranche B Commitment, in an amount equal to the
average daily face amount of Letters of Credit outstanding during
such Fiscal Quarter times the Applicable Percentage. Each change in
the Applicable Percentage shall be effective on the date of the
public announcement or publication by Standard & Poor's Ratings
Group or Moody's Investors Service, Inc. of a change in the Company's
senior unsecured long-term debt ratings.
3.6 LC Drawing Fee. The Company shall pay a drawing fee
to each Issuing Bank in the amount of $250 for each drawing under any
of its Letters of Credit, payable on the date of such drawing.
3.7 Capital Adequacy. If any Bank (including an Issuing
Bank) determines in good faith that compliance with any Law or
regulation or with any guideline or request from any central bank or
other Governmental Agency (whether or not having the force of Law)
has or would have the effect of reducing the rate of return on the
capital of such Bank or any corporation controlling such Bank as a
consequence of, or with reference to, such Bank's Pro Rata Share of
any portion of the Commitment or its making or maintaining of
Advances, or its issuance of any Letter of Credit, below the rate
which such Bank or such other corporation could have achieved but for
such compliance (taking into account the policies of such Bank or
corporation with regard to capital), then the Company shall from time
to time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), immediately pay to such Bank additional
amounts sufficient to compensate such Bank or other corporation for
such reduction. A certificate as to such amounts, setting forth in
reasonable detail the basis for such calculations, submitted to the
Company and the Administrative Agent by such Bank, shall be
conclusive and binding for all purposes, absent manifest error. Each
Bank agrees promptly to notify the Company and the Administrative
Agent of any circumstances that would cause the Company to pay
additional amounts pursuant to this Section, provided that the
failure to give such notice shall not affect the Company's obligation
to pay such additional amounts hereunder. If any Bank shall have
been compensated pursuant to this Section 3.7, the Company shall have
the right, upon 30 days prior notice to the Administrative Agent,
with the assistance (but not the obligation) of the Administrative
Agent, to seek a substitute bank or banks (which may be one or more
of the Banks) satisfactory to the Company, the Administrative Agent
and the Issuing Banks to assume the Commitment of such Bank and to
purchase the Notes of such Bank and all amounts owing to such Bank in
respect of Advances and Letters of Credit under this Agreement
pursuant to Section 13.8.
3.8 Increased Costs.
(a) If, after the date hereof, by reason of (i) the
adoption of any Law by any Governmental Agency, central branch
or comparable authority with respect to activities in the
Eurodollar Market, or (ii) any change in the interpretation or
administration of any existing Law by any Governmental Agency,
central bank or comparable authority charged with the
interpretation or administration thereof, or (iii) compliance by
any Bank or its Eurodollar Lending Office or an Issuing Bank
with any request or directive (whether or not having the force
of Law) of any such Governmental Agency, central bank or
comparable authority, or (iv) the existence or occurrence of
circumstances affecting the Eurodollar Market generally that are
beyond the reasonable control of the Banks:
(1)(A) any reserve (including, without limitation,
any reserve imposed by the Board of Governors of the
Federal Reserve System), special deposit or similar
requirements shall be imposed, modified or deemed
applicable against assets of, deposits with or for the
account of, or credit extended by, any Bank or its
Eurodollar Lending Office or an Issuing Bank; or
(B) any Bank or its Eurodollar Lending Office or the
Eurodollar Market or an Issuing Bank shall have imposed on
it any other condition affecting any Advance, any of its
Notes, its obligation to make Advances or this Agreement,
or its obligation to make or maintain Letters of Credit
hereunder, or any of the same shall otherwise be adversely
affected;
and the result of any of the foregoing, as determined by such
Bank, increases the cost to such Bank or its Eurodollar Lending
Office of making or maintaining any Advance or in respect of any
Advance, any of its Notes or its obligation to make Advances or
the issuance of maintenance of any Letter of Credit or reduces
the amount of any sum received or receivable by such Bank or its
Eurodollar Lending Office with respect to any Advance, any of
its Notes or its obligation to make Advances (assuming such
Bank's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Eurodollar Market) or in respect
of Letters of Credit or its participation therein, then, upon
demand by such Bank or the applicable Issuing Bank (with a copy
to the Administrative
Agent), the Company shall pay to such Bank or such Issuing Bank,
as the case may be, such additional amount or amounts as will
compensate such Bank or such Issuing Bank, as the case may be,
for such increased cost or reduction. A statement of any Bank
or an Issuing Bank claiming compensation under this subsection
and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest
error. Each Bank and each Issuing Bank agree to endeavor
promptly to notify the Company of any event of which it has
actual knowledge (and, in any event, within 90 days from the
date on which it obtained such knowledge), occurring after the
Closing Date, which will entitle such Bank or such Issuing Bank
to compensation pursuant to this Section, and agrees to
designate a different Eurodollar Lending Office if such
designation will avoid the need for or reduce the amount of such
compensation and will not, in the judgment of such Bank or such
Issuing Bank, otherwise be disadvantageous to such Bank or such
Issuing Bank. If any Bank claims compensation under this
Section, the Company may at any time, upon at least four (4)
Banking Days' prior notice to the Administrative Agent and Banks
and upon payment in full of the amounts provided for in this
Section through the date of such payment plus any fee required
by Section 3.8(c), pay in full all Advances or request that all
Eurodollar Rate Advances be converted to Base Rate Advances or
all Base Rate Advances be converted to Eurodollar Rate Advances.
If any Bank shall have been compensated pursuant to this Section
3.8(a), the Company shall have the right, upon 30 days prior
notice to the Administrative Agent, with the assistance (but not
the obligation) of the Administrative Agent, to seek a
substitute bank or banks (which may be one or more of the Banks)
satisfactory to the Company, the Administrative Agent and the
Issuing Banks to assume the Commitment of such Bank and to
purchase the Notes of such Bank and all amounts owing to such
Bank in respect of Advances and Letters of Credit under this
Agreement pursuant to Section 13.8.
(2) in the opinion of any Bank, it shall be unlawful,
impossible or impracticable for such Bank or its Eurodollar
Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or the authority of such Bank to purchase
or sell, or to take deposits of, dollars in the Eurodollar
Market, or to determine or charge interest rates based upon the
Eurodollar Rate shall be materially
restricted, then such Bank shall so notify the Administrative
Agent and the other Banks, and such Bank's obligation to make
Eurodollar Rate Advances shall be suspended for the duration of
such illegality, impossibility or impracticability and the
Administrative Agent forthwith shall give notice thereof to the
Company and such Bank shall make a Base Rate Advance as part of
any successive Eurodollar Rate Loan. Upon receipt of such
notice, the outstanding principal amount of all Eurodollar Rate
Advances made by such Bank, together with accrued interest
thereon, automatically shall be converted to Base Rate Advances
with Interest Periods corresponding to the Eurodollar Loans of
which such Eurodollar Rate Advances were a part on either (A)
the last day of the Eurodollar Period(s) applicable to such
Eurodollar Rate Advances if the affected Bank may lawfully
continue to maintain and fund such Eurodollar Rate Advances to
such day(s) or (B) immediately if the affected Bank may not
lawfully continue to fund and maintain such Eurodollar Rate
Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a fee under
Section 3.8(c).
(b) If, with respect to any proposed Eurodollar Rate Loan:
(i) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Eurodollar
Market generally that are beyond the reasonable control of
the Banks, deposits in dollars (in the applicable amounts)
are not being offered to each of the Banks in the
Eurodollar Market for the applicable Eurodollar Period; or
(ii) the Majority Banks advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent (1) does not represent the effective
pricing to such Banks for deposits in dollars in the
Eurodollar Market in the relevant amount for the applicable
Eurodollar Period, or (2) will not adequately and fairly
reflect the cost to such Banks of making the applicable
Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice
thereof to the Company and the Banks, whereupon until the
Administrative Agent notifies the Company that the
circumstances giving rise to such suspension no longer exist,
the obligation of the Banks to make any future Eurodollar Rate
Advances shall be suspended. If at the time of such notice there
is then pending a Request for Loan that specifies a Eurodollar
Rate Loan, such Request for Loan shall be deemed to specify a
Base Rate Loan.
(c) The Company shall compensate each Bank for any loss
sustained by that Bank in connection with the liquidation or re-
employment of funds, excluding any loss of margin, and, without
duplication, all actual out-of-pocket expenses (excluding
allocations of any expense internal to such Bank) reasonably
attributable thereto that such Bank may sustain: (i) if for any
reason (other than a default by that Bank) a borrowing of any
Eurodollar Rate Loan does not occur on a date or in the amount
specified therefor in a Request for Loan or a telephonic request
for loan, (ii) if any prepayment or other principal payment or
any conversion (other than as a result of a conversion required
under Section 3.8(a)(2)) of any of its Eurodollar Rate Loans
occurs on a date prior to the last day of an Interest Period
applicable to that Loan, or (iii) if any prepayment of any of
its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by the Company. Each Bank's
determination of any amount payable under this Section 3.8(c)
shall be conclusive in the absence of manifest error. Each Bank
shall submit an invoice to the Administrative Agent of the
amount payable by the Company under this Section 3.8(c) setting
forth in reasonable detail the basis for such amount and the
Administrative Agent shall notify the Company of such amount.
The Company shall pay such amount to the Administrative Agent
for the account of the relevant Bank, and the Administrative
Agent shall promptly pay each relevant Bank the portion of the
amount owed to it.
3.9 Late Payments. If any installment of principal or
interest or any fee or cost or other amount payable under any Loan
Document to the Administrative Agent, either Issuing Bank or any Bank
is not paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the sum of
the Base Rate plus 2% per annum, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall
be compounded daily and shall be payable on demand, to the fullest
extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of
interest on Base Rate Loans shall be calculated on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.
Computation of all fees and interest on Eurodollar Rate Loans and
Competitive Advances shall be calculated on the basis of a year of
360 days and the actual number of days elapsed. Any Advance that is
repaid on the same day on which it is made shall bear interest for
one day.
3.11 Non-Banking Days. If any payment to be made by a
Borrower or any other party under any Loan Document shall come due on
a day other than a Banking Day, payment shall instead be considered
due on the next succeeding Banking Day and the extension of time
shall be reflected in computing the amount of such payment.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder or on the Notes or under any
other Loan Document shall be made to the Administrative Agent,
at the Administrative Agent's Office, for the account of each of
the appropriate Banks or the applicable Issuing Bank, as the
case may be, in immediately available funds not later than 2:00
p.m., New York time, on the day of payment (which must be a
Banking Day). All payments received after 2:00 p.m., New York
time, on any particular Banking Day, shall be deemed received on
the next succeeding Banking Day. The amount of all payments
received by the Administrative Agent for the account of each
Bank or either Issuing Bank shall be promptly paid by the
Administrative Agent to the applicable Bank or the applicable
Issuing Bank, as the case may be, in immediately available
funds. All payments shall be made in lawful money of the United
States of America.
(b) Prior to the occurrence of any Event of Default, each
payment or prepayment received by the Administrative Agent on
account of any Loan or Competitive Advance shall be applied:
(i) To the Notes, pro rata in accordance with the
aggregate principal Indebtedness owed to each Bank under
the Notes,
(ii) Notwithstanding clause (i) above, any payment
by a Borrower which is designated as a prepayment of a
Competitive Advance Note shall be applied to such
Competitive Advance Note, provided that (A) the consent of
the affected Bank to such prepayment has been obtained and
(B) the payment of all amounts due with respect to the Loan
Documents on the date of such prepayment shall have been
provided for to the satisfaction of the Administrative
Agent.
(c) Each Bank shall use its best efforts to keep a record
of Advances made by it and payments received by it with respect
to its Notes and, subject to Section 10.6(g), such record shall
be presumptive evidence of the amounts owing. Notwithstanding
the foregoing sentence, no Bank shall be liable to any party for
any failure to keep such a record.
(d) (i) Each payment of any amount payable by any
Borrower to or for the account of any Bank under this
Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any Taxes or
Other Taxes. To the extent that a Borrower is obligated by
applicable Laws to make any deduction or withholding on
account of Taxes or Other Taxes, from any amount payable to
any Bank under this Agreement, such Borrower shall (i) make
such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional
amount as is necessary to result in Bank's receiving, after
all required deductions (including deductions applicable to
additional sums payable under this Section 3.12(d)) an
amount equal to the amount to which that Bank would have
been entitled under this Agreement or other Loan Document
absent such deduction.
(ii) If and when receipt of a payment under this
Section 3.12(d) results in an excess payment or credit to
that Bank on account of the relevant Taxes or Other Taxes,
that Bank shall refund such excess to such Borrower.
(iii) Each Bank organized under the laws of a
jurisdiction outside the United States, within twenty (20)
Banking Days of its execution and delivery of this
Agreement in the case of each Bank listed on the signature
pages hereof and on or prior to the date on which it
becomes a Bank in the case of each other Bank, but in no
event less than ten (10) Banking Days prior to
the next succeeding Interest Payment Date, and from time to
time thereafter if requested in writing by any Borrower,
shall provide any Borrower and the Administrative Agent
with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which
the United States is a party which exempts the Bank from
withholding tax or reduces the rate of withholding tax in
payments of interest for the account of such Bank or
certifying that the income receivable pursuant to this
Agreement and the other Loan Documents is effectively
connected with the conduct of a trade or business in the
United States; provided, however that should a Bank, which
is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, each Borrower
shall take such steps as such Bank shall reasonably request
to assist such Bank to recover such Taxes.
(iv) For any period with respect to which a Bank has
failed to provide the Borrower or the Administrative Agent
with the appropriate form pursuant to Section 3.12(d)(iii)
(unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such
form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section
3.12(d)(i) with respect to Taxes imposed by the United
States.
(v) If a Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 3.12, then such Bank will change the jurisdiction
of its applicable lending office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any
such additional payment that may thereafter accrue and (ii)
is not otherwise disadvantageous to such Bank.
3.13 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Bank to obtain the funds for any Loan or
Advance in any particular place or manner or to constitute a
representation by any Bank that it has obtained or will obtain the
funds for any Loan or Advance in any particular place or manner.
Each of the Borrowers agree that, for purposes of any determination
to be made under Section 3.8 or the definition of Eurodollar Reserve
Percentage, each Bank shall be deemed to have funded its Eurodollar
Rate Advances with dollar deposits in the London interbank market.
3.14 Failure to Charge Not Subsequent Waiver. Any decision
by any Bank not to require payment of any interest (including
interest arising under Section 3.9), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable
by a particular method, on any occasion shall in no way limit or be
deemed a waiver of such Bank's right to require full payment of any
interest (including interest arising under Section 3.9), fee, cost or
other amount payable under any Loan Document, or to calculate an
amount payable by another method, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will
be Made by Borrower. Unless the Administrative Agent shall have been
notified by a Borrower prior to the date on which any payment to be
made by that Borrower hereunder is due that such Borrower does not
intend to remit such payment, the Administrative Agent may, in its
discretion, assume that such Borrower has remitted such payment when
so due and the Administrative Agent may, in its discretion and in
reliance upon such assumption, make available to each Bank on such
payment date an amount equal to such Bank's share of such assumed
payment. If a Borrower has not in fact remitted such payment to the
Administrative Agent, each Bank shall forthwith on demand repay to
the Administrative Agent the amount of such assumed payment made
available to such Bank, together with interest thereon in respect of
each day from and including the date such amount was made available
by the Administrative Agent to such Bank to the date such amount is
repaid to the Administrative Agent at a rate per annum equal to the
actual cost to the Administrative Agent of funding such amount as
notified by the Administrative Agent to such Bank.
3.16 Fee Determination Detail. The Administrative Agent,
the applicable Issuing Bank and any Bank, shall provide reasonable
detail to the Company regarding the manner in which the amount of any
payment to the Banks, or that Bank, under Article 3 has been
determined.
3.17 Letter of Credit Illegality. In the event that it
shall become unlawful for an Issuing Bank to give effect to all or
any part of its obligations under this Agreement, such Issuing Bank
shall give the Administrative Agent, the Company and each Bank prompt
notice thereof and the following provisions shall apply:
(i) in the case of it becoming unlawful for an Issuing
Bank to issue any Letter of Credit, such Issuing Bank shall have
no obligation to issue such Letter of Credit; and
(ii) in the case of it becoming unlawful for an Issuing
Bank to issue or maintain any Letter of Credit, the
Administrative Agent shall attempt on a best efforts basis to
induce another bank or financial institution (including any
Bank) to serve as a replacement Issuing Bank with respect to any
Letter of Credit of such Issuing Bank; provided that all
documentation in respect of the release of the replaced Issuing
Bank from its obligations hereunder and under any such Letter of
Credit shall be in form and substance satisfactory to the
replaced Issuing Bank, the Administrative Agent and the Company.
Upon designation of a replacement Issuing Bank, the replaced
Issuing Bank shall be discharged from all further duties and
obligations hereunder and under the Loan Documents, except that
the provisions of this Agreement shall continue in effect for
the benefit of the replaced Issuing Bank in respect of any
actions taken by it or omitted to be taken by it while it was
acting as an Issuing Bank hereunder.
3.18 Survivability. All of the Company's obligations under
Sections 3.7 and 3.8 shall survive for thirty (30) days following the
termination of this Agreement; provided, however, that such
obligations shall not, from and after the termination of this
Agreement, be deemed Obligations for any purpose under the Loan
Documents.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Banks that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Each of such Borrower and its Subsidiaries is a corporation
duly formed, validly existing and in good standing under the Laws of
the jurisdiction of its incorporation. Each of such Borrower and its
Subsidiaries is duly qualified to transact business, and
is in good standing, in any jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so
to qualify or register and to be in good standing would not
constitute a Material Adverse Effect. Each of such Borrower and its
Subsidiaries has all requisite corporate power and authority to
conduct its business and to own and lease its Properties. Each
Borrower has all requisite corporate power and authority to execute
and deliver each Loan Document to which it is a party and to perform
its Obligations. All outstanding shares of capital stock of each
Borrower are duly authorized, validly issued, fully paid,
nonassessable and issued in compliance with all applicable state and
federal securities and other Laws. Each of such Borrower and its
Subsidiaries has obtained all authorizations, consents, approvals,
orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from
any of the foregoing from, any Governmental Agency that are necessary
for the transaction of its business, except where the failure so to
comply, file, register, qualify or obtain exemptions does not
constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution, delivery and
performance of the Loan Documents by such Borrower have been duly
authorized by all necessary corporate action, and do not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder
or creditor of such Borrower;
(b) Result in or require the creation or imposition of any
Lien upon or with respect to any Property now owned or leased or
hereafter acquired by such Borrower;
(c) Violate, to the best knowledge of such Borrower, any
Requirement of Law applicable to such Borrower;
(d) Result (or, with the giving of notice or passage of
time or both, would result) in a breach of or default under, or
cause or permit the acceleration of any obligation owed under
any Contractual Obligation to which such Borrower is a party or
by which such Borrower or any of its Property is bound or
affected;
except where failure to receive such consent or approval or creation
of such Lien or violation of, or default under, any such Requirement
of Law or Contractual Obligation would not constitute a Material
Adverse Effect.
4.3 No Governmental Approvals Required. Subject to the
representations of the Banks contained in Section 13.8, no
authorization, consent, approval, order, license or permit from, or
filing, registration or qualification with, any Governmental Agency
is required to authorize or permit under applicable Laws the
execution, delivery and performance of the Loan Documents by such
Borrower.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets
forth (i) the names, the form of legal entity, number of shares of
capital stock issued and outstanding, jurisdictions of organization
and chief executive offices of all Subsidiaries of such Borrower and
(ii) the names, the form of legal entity, equity percentage
ownership, and jurisdictions of organization of each partnership and
joint venture that is excluded from the definition of the term
"Subsidiary" but as to which the Company or a Subsidiary owns 50% or
more of the ownership interests.
4.5 Financial Statements. The Company has furnished to
the Banks the audited consolidated financial statements of the
Company and its Consolidated Subsidiaries as at December 31, 1994 and
for the twelve months then ended and unaudited consolidated financial
statements of the Company and its Subsidiaries as at March 31, 1995
and for the three months then ended. Such financial statements
fairly present the financial condition and the results of operations
of the Company and its Subsidiaries as at such dates and for such
periods in accordance with Generally Accepted Accounting Principles.
4.6 No Other Liabilities; No Material Adverse Effect. The
Company and its Consolidated Subsidiaries do not have any material
liability or material contingent liability not reflected or disclosed
in the balance sheet or notes thereto described in Section 4.5, other
than liabilities and contingent liabilities arising in the ordinary
course of business subsequent to March 31, 1995. There has been no
event or circumstance that constitutes a Material Adverse Effect with
respect to the Company and its Subsidiaries since March 31, 1995.
4.7 Title to and Location of Property. The Company and
its Subsidiaries have good and valid title to all the Property
reflected in the balance sheet described in Section 4.5 except for
those defects in title that would not result in a Material Adverse
Effect, other than Property subsequently sold or disposed of in the
ordinary course of business, free and clear of all Liens, other than
(i) Liens permitted by Section 6.5 and (ii) Liens that would not
constitute a Material Adverse Effect.
4.8 Intangible Assets. To the Company's knowledge, the
Company and its Subsidiaries own, possess the right to use or can
obtain on reasonable terms a license to use to the extent necessary
in their respective businesses, all trademarks, trade names,
copyrights, patents, computer software, licenses and other Intangible
Assets required to conduct their businesses as currently conducted
and, in each case, which are material to the financial condition or
operations of the Company and its Subsidiaries taken as a whole.
Neither the Company nor any Subsidiary has received any notice of
infringement with respect to any of the foregoing that would, if the
subject of an unfavorable ruling, constitute a Material Adverse
Effect.
4.9 Governmental Regulation. No Borrower is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, the Investment
Company Act of 1940 or to any other Law limiting or regulating its
ability to incur Indebtedness for money borrowed.
4.10 Litigation. Except for (a) any matter fully covered
(subject to applicable deductibles and retentions) by insurance for
which the insurance carrier has assumed full responsibility, (b)
matters described in public documents filed with Governmental
Agencies and previously delivered to the Banks, and (c) matters
disclosed on Schedule 4.10 hereto, there are no actions, suits,
proceedings or investigations pending as to which the Company or any
of its Subsidiaries have been served or have received notice or, to
the best knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries or any Property of any of them
before any Governmental Agency which could reasonably be expected to
constitute a Material Adverse Effect.
4.11 Binding Obligations. Each of the Loan Documents will,
when executed and delivered by such Borrower, constitute the legal,
valid and binding obligation of such Borrower, enforceable against
such Borrower in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or equitable
principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing
that is a Default or Event of Default.
4.13 Employee Benefit Plans.
(a) The Company and each of its ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA
and the regulations and published interpretations thereunder with
respect to each Employee Benefit Plan, and have performed all their
obligations under each Employee Benefit Plan, except where the
failure to be in such compliance or to perform such obligation would
not constitute a Material Adverse Effect.
(b) No ERISA Event that would constitute a Material
Adverse Effect has occurred or is reasonably expected to occur.
(c) Except to the extent required under Section 4980B of
the Code, no Employee Benefit Plan maintained by the Company or any
of its Current ERISA Affiliates provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or
former employees of the Company or any of its Current ERISA
Affiliates.
(d) As of the most recent valuation date for any Pension
Plan with respect to which the Company or a Subsidiary has any
financial liability (including potential joint and several liability)
in the event any such Pension Plan were to terminate, the amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefit liabilities), does not exceed
$30,000,000.
4.14 Regulation U. No part of the proceeds of any Advance
hereunder will be used to purchase or carry, or to extend credit to
others for the purpose of purchasing or carrying, any "margin stock"
(as such term is defined in Regulation U) in violation of Regulation
U. Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any
such "margin stock."
4.15 Disclosure. All written information heretofore
supplied by the Company to the Administrative Agent for the purposes
of this Agreement is true and accurate in all material respects on
the date as of which such information is stated. The Company has
disclosed to the Administrative Agent all facts which materially and
adversely may, in the good faith opinion of the Company, affect (to
the extent the Company can reasonably foresee) the financial
condition of the Company and its Subsidiaries, taken as a whole, or
the ability of the Company to perform its obligations under this
Agreement.
4.16 Tax Liability. Each of the Company and its
Subsidiaries has filed or caused to be filed all tax returns which
are required to have been filed by it, and has paid or caused to be
paid, or made provision for the payment of, all taxes with respect to
the periods, Property or transactions covered by said returns, or
pursuant to any assessment received by the Company or any of its
Subsidiaries, except (a) taxes for which the Company has been fully
indemnified, (b) such taxes, if any, as are being contested in good
faith by appropriate proceedings and as to which adequate reserves
have been established and maintained and (c) where the failure to so
file or pay would be immaterial to the financial condition, business
or prospects of the Company. To the best knowledge of the Company,
there is no tax assessment contemplated or proposed by any
Governmental Agency against the Company or any of its Subsidiaries
that would constitute a Material Adverse Effect.
4.17 Environmental Matters. As of the Closing Date, except
as set forth in the Company's annual report on Form 10-K for the year
ended December 31, 1994 to the Securities and Exchange Commission, or
as disclosed in Schedule 4.17 annexed hereto, (a) the Company and
each Subsidiary have complied with all Environmental Laws, except to
the extent that the failure to so comply would not be reasonably
likely to result in a Material Adverse Effect, (b) the Company's and
its Subsidiaries' facilities do not manage any hazardous wastes,
hazardous substances, hazardous materials, toxic substances or toxic
pollutants in any manner that would result in a violation of any
Environmental Law, except for violations that would not be reasonably
likely to result in a Material Adverse Effect and (c) the Company is
aware of no events, conditions or circumstances involving environmental
pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that has resulted
or would be reasonably likely to result in a Material Adverse Effect.
ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, each Borrower shall, and shall cause
each of its Subsidiaries to, unless the Administrative Agent (acting
on the direction of the Majority Banks) otherwise consents in
writing:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental charges or
levies imposed upon any of them, upon their respective Property or
any part thereof, or upon their respective income or profits or any
part thereof, except that the Company and its Subsidiaries shall not
be required to pay or cause to be paid any tax, assessment, charge or
levy that is not yet past due, or is being contested in good faith by
appropriate proceedings, so long as the relevant entity has
established and maintains adequate reserves for the payment of the
same and by reason of such nonpayment and contest no material item or
portion of Property of the Company and its Subsidiaries, taken as a
whole, is in jeopardy of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain
their respective existences in the jurisdiction of their formation
and all authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations from any
Governmental Agency that are necessary for the transaction of their
respective business, and qualify and remain qualified to transact
business in each jurisdiction in which such qualification is
necessary in view of their respective business or the ownership or
leasing of their respective Properties except where the failure to
maintain such preservation or maintenance of existence,
authorizations, rights, franchises, privileges, consents, approvals,
orders, licenses, permits or registration or to do so qualify would
not constitute a Material Adverse Effect and; provided that a merger
permitted under Section 6.2 shall not
constitute a violation of this covenant. Nothing herein contained
shall prevent the termination of the business or corporate existence
of any Subsidiary (other than a Borrower) that, in the judgment of
the Company, is no longer necessary or desirable, as long as
immediately after giving effect to any such transaction, no Default
shall have occurred and be continuing.
5.3 Maintenance of Properties. Maintain, preserve and
protect all of their respective depreciable Properties in good order
and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of their respective Properties,
except that any failure to so maintain, preserve or protect such
Properties that does not constitute a Material Adverse Effect shall
not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability,
casualty and other insurance (subject to customary deductibles and
retentions), with responsible insurance companies in such amounts and
against such risks as is carried by responsible companies engaged in
similar businesses and owning similar assets in the general areas in
which the Company and its Subsidiaries operate; provided that,
notwithstanding the foregoing, the Company may self-insure for
earthquake risk.
5.5 Compliance With Laws. Comply with all Requirements of
Law noncompliance with which constitutes a Material Adverse Effect,
except that the Company and its Subsidiaries need not comply with a
Requirement of Law then being contested by any of them in good faith
by appropriate proceedings.
5.6 Visitation. Upon reasonable notice permit the
Administrative Agent or representatives of any Bank at the
Administrative Agent's or such Bank's expense to visit any of its
major properties and to discuss its affairs and finances with its
officers and independent public accountants, all at such reasonable
times and as often as may reasonably be requested.
5.7 Keeping of Records and Books of Account. Keep
adequate records and books of account reflecting all financial
transactions in conformity with Generally Accepted Accounting
Principles, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory
jurisdiction over the Company or any of its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply
with all Contractual Obligations, except that the Company and its
Subsidiaries need not comply with Contractual Obligations then being
contested by any of them in good faith by appropriate proceedings or
if the failure to comply with such Contractual Obligations does not
constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Advances only
for general corporate purposes of the Borrowers. Use the Tranche A
Letters of Credit only for trade, commercial and standby letters of
credit in the ordinary course of business. Use the Tranche B Letters
of Credit only to provide liquidity and credit support for the
private placement in Puerto Rico by Amgen Manufacturing, Inc., a
Puerto Rican corporation and a wholly owned subsidiary of the
Company.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of the
Commitment remains in force, the Company shall not, and shall not
permit any of its Subsidiaries to, unless the Administrative Agent
(acting on the direction of the Majority Banks) otherwise consents in
writing:
6.1 Change in Nature of Business. Make any material
change in the nature of the business of the Company and its
Subsidiaries, taken as a whole, as at present conducted.
6.2 Mergers. Merge, consolidate or amalgamate with or
into any Person, or convey substantially all of its Properties and
assets to another Person, unless each of the following conditions are
met:
(a) no Default or Event of Default exists or would exist
immediately following the consummation of such merger,
consolidation, amalgamation or conveyance;
(b) in a merger, consolidation or amalgamation of the
Company with another Person or Persons, the Company is the
surviving entity;
(c) in the case of a conveyance of Properties and assets,
the Properties and assets conveyed do not consist of
substantially all of the Properties and assets of the Company
and its Subsidiaries taken as a whole; and
(d) the Company and any Borrowers surviving the merger,
consolidation or amalgamation continue in compliance with all
the terms and conditions set forth in this Agreement.
6.3 Acquisitions of Securities of the Company. Make any
Investment in or acquisition of Securities of the Company so long as
an Event of Default is continuing other than repurchases of
Securities of the Company from terminated employees or consultants.
6.4 Distributions. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property,
except:
(a) Distributions by Subsidiaries of the Company to the
Company or to a wholly owned Subsidiary of the Company;
(b) repurchases of Securities of the Company from
terminated employees or consultants; and
(c) any other Distribution if, after the making of such
Distribution, there shall not exist a Default or an Event of
Default.
6.5 Liens; Negative Pledges; Sales and Leasebacks. Create,
incur, assume or suffer to exist any Lien of any nature upon or with
respect to any of their respective Properties, whether now owned or
hereafter acquired, or engage in any sale and leaseback transaction
with respect to its Property, except:
(a) Permitted Encumbrances;
(b) Liens in favor of the Administrative Agent or the
Banks under the Loan Documents;
(c) Liens existing on the date hereof and listed on
Schedule 6.5 and Liens on the same Property which secure
Indebtedness which replaces or refinances the Indebtedness
originally secured by those Liens; provided that the obligations
secured thereby are not increased;
(d) pre-existing Liens on assets acquired by the Company
or any of its Subsidiaries after the Closing Date; and
(e) Liens securing Indebtedness or obligations (including
sale and leaseback transactions to which the Company or any
Subsidiary is a party as vendor and lessee) incurred after the
date hereof the outstanding amount of which Indebtedness or
obligation does not in the aggregate exceed 35% of consolidated
total assets of the Company (measured as of the last day of the
most recently ended Fiscal Quarter).
6.6 Transactions with Affiliates. Enter into any
transaction of any kind which is material to the Company and its
Subsidiaries taken as a whole with any Affiliate of the Company other
than (a) transactions between or among the Company and its
Subsidiaries or between or among its Subsidiaries and (b)
transactions on terms at least as favorable to the Company or its
Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.7 Interest Charge Coverage Ratio. Permit the Interest
Charge Coverage Ratio, as of the last day of each Fiscal Quarter, to
be less than 3.00 to 1.00.
6.8 Tangible Net Worth. Permit Tangible Net Worth, as of
the last day of each Fiscal Quarter, to be less than $900,000,000
plus the sum of the following amounts calculated separately for each
Fiscal Quarter in the Calculation Period and aggregated for all
Fiscal Quarters in the Calculation Period: (a) 25% of the net cash
proceeds of any issuance by the Company of equity securities during
each such Fiscal Quarter plus (b) 25% of Net Income (but not less
than $0) for each such Fiscal Quarter minus (c) any funds used by the
Company to repurchase the Company's equity securities during each
such Fiscal Quarter. The term "Calculation Period" means the period
commencing January 1, 1995 and ending as of the last day of the
Fiscal Quarter for which the calculation is being made.
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains in force,
the Company shall, unless the Administrative Agent (with the
approval of the Majority Banks) otherwise consents in writing,
deliver to the Banks and the Administrative Agent, at the Company's
sole expense:
(a) As soon as practicable, and in any event within 45
days after the end of each Fiscal Quarter (other than the fourth
Fiscal Quarter in any Fiscal Year), (i) the consolidated balance
sheets of the Company and its Subsidiaries as at the end of such
Fiscal Quarter, (ii) consolidated statements of income and (iii)
consolidated statements of cash flow, in each case described in
clauses (ii) and (iii) of the Company and its Subsidiaries for
such Fiscal Quarter and for the portion of the Fiscal Year ended
with such Fiscal Quarter, all in reasonable detail. Such
financial statements shall be certified by a Senior Officer of
the Company as fairly presenting the financial condition,
results of operations and changes in financial position of the
Company and its Subsidiaries in accordance with Generally
Accepted Accounting Principles (other than any requirement for
footnote disclosures), as at such date and for such periods,
subject only to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 90
days after the end of each Fiscal Year, (i) the consolidated
balance sheets of the Company and its Subsidiaries as at the end
of such Fiscal Year, (ii) consolidated statements of income of
the Company and its Subsidiaries for such Fiscal Year and (iii)
consolidated statements of cash flow of the Company and its
Subsidiaries for such Fiscal Year, all in reasonable detail.
Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, and such consolidated
balance sheet and consolidated statements shall be accompanied
by a report and opinion of Ernest & Young or other independent
public accountants of recognized national standing selected by
the Company, which report and opinion shall be prepared in
accordance with generally accepted auditing standards as at such
date;
(c) Promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the shareholders of the Company, and
copies of all annual, regular, periodic and
special reports and registration statements which the Company or
a Subsidiary of the Company may file or be required to file
under Sections 13 or 15(d) of the Securities Exchange Act of
1934;
(d) As soon as practicable, and in any event within five
(5) Banking Days after a Senior Officer of the Company obtains
actual knowledge of the existence of any condition or event
which constitutes a Default or Event of Default, written notice
specifying the nature and period of existence thereof and
specifying what action the Company or any of its Subsidiaries is
taking or proposes to take with respect thereto;
(e) Upon the reasonable request of the Administrative
Agent, and concurrently with the delivery of the consolidated
financial statements described herein, consolidating financial
statements of the types described in Sections 7.1(a) and 7.1(b);
(f) Promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event defined in clauses (i)
through (vii) or (xi) of the definition thereof involving Title
IV or ERISA that could reasonably be expected to result in
material liability to the Company or its Subsidiaries or any
ERISA Event that could reasonably be expected to result in a
Material Adverse Effect, a written notice specifying the nature
thereof, what action the Company or any of its ERISA Affiliates
has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with
respect thereto;
(g) With reasonable promptness, copies of (a) each
Schedule B (Actuarial Information) to the annual report, if any
(Form 5500 Series), filed by the Company or any of its Current
ERISA Affiliates with the Internal Revenue Service with respect
to each Pension Plan; (b) all notices received by the Company or
any of its Current ERISA Affiliates from the sponsor of a
Multiemployer Plan to which a Current ERISA Affiliate
contributes concerning an ERISA Event defined in clauses (i)
through (vii) or (xi) of the definition thereof; and (c) such
other documents or governmental reports or filings relating to
any Employee Benefit Plan as the Administrative Agent shall
reasonably request; and
(h) Such other material information directly related to
any Borrower's ability to meet its Obligations hereunder as from
time to time may be reasonably requested by the Administrative
Agent or the Majority Banks.
7.2 Compliance Certificates. So long as any Advance
remains unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains outstanding,
the Company shall, unless the Majority Banks otherwise consent,
deliver to the Administrative Agent, at the Company's sole expense,
concurrently with the financial statements required pursuant to
Sections 7.1(a) and 7.1(b), a Compliance Certificate signed by a
Senior Officer of the Company, including calculations as set forth
therein.
ARTICLE 8
CONDITIONS
8.1 Conditions to Effectiveness. The Credit Agreement and
the Commitments of the Banks hereunder shall be effective on the date
on which each of the following conditions precedent, (unless the
Administrative Agent, acting at the direction of the Majority Banks,
otherwise consents in writing) shall have been satisfied:
(a) The Administrative Agent shall have received all of
the following, each of which shall be originals unless otherwise
specified, each in form and substance satisfactory to the
Administrative Agent, the Issuing Banks and the Banks:
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Banks and the
Borrowers;
(2) the Committed Advance Notes dated the Closing
Date and executed by each Borrower in favor of each Bank,
each in a principal amount equal to that Bank's Pro Rata
Share of the Tranche A Commitment;
(3) the Competitive Advance Notes dated the Closing
Date and executed by each Borrower in favor of each Bank,
each in the principal amount of $150,000,000;
(4) A certified copy of the Certificate of Incor-
poration of each Borrower, together with a good standing
certificate from the Secretary of State of the State of
incorporation of each Borrower and, to the extent generally
available, a certificate or other evidence of good standing
as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such
states, each dated a recent date prior to the Closing Date;
(5) Copies of each Borrower's Bylaws, certified as of
the Closing Date by the corporate secretary or an assistant
secretary of each such Borrower;
(6) Resolutions of the Board of Directors of each
Borrower approving and authorizing the execution, delivery
and performance of this Agreement and the other Loan
Documents to which each such Borrower is a party, certified
as of the Closing Date by the corporate secretary or an
assistant secretary of each such Borrower as being in full
force and effect without modification or amendment;
(7) Signature and incumbency certificates of the
officers of each Borrower executing this Agreement and the
other Loan Documents;
(8) the favorable written legal opinion of Thomas E.
Workman, Jr., Esq., General Counsel to the Company,
substantially in the form of Exhibit G-1, together with
copies of any officer's certificate or legal opinion of
another counsel or law firm specifically identified and
expressly relied upon by such counsel in its opinion;
(9) the favorable written legal opinion of O'Melveny
& Myers, counsel to the Administrative Agent, substantially
in the form of Exhibit G-2;
(10) a Certificate of a Senior Officer of the Company
certifying that the conditions specified in Sections
8.1(b), 8.1(c), and 8.1(d) have been satisfied; and
(11) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably
may require.
(b) The representations and warranties of the Borrowers
contained in Article 4 shall be true and correct.
(c) Each Borrower shall be in compliance with all the
terms and provisions of the Loan Documents.
(d) The Company shall have repaid in full the indebtedness
to the lenders under the Existing Loan Documents, as well as all
interest, costs, fees and expenses associated therewith, and the
commitment to lend under the Existing Loan Documents shall have
been terminated.
(e) The Company shall have paid to the Co-Arrangers and
the Administrative Agent the fees payable on the date of this
Agreement referred to in Section 3.3.
8.2 Any Increasing Advance and Any Letter of Credit. The
obligation of each Bank to make any Competitive Advance (including
the initial Advance), after acceptance of a Competitive Bid of such
Bank in accordance with Section 2.4, or to make any Committed Advance
which would increase the aggregate principal amount of Committed
Advances of such Bank, and the obligation of an Issuing Bank to issue
any Letter of Credit (including the initial Letter of Credit), is
subject to the following conditions precedent (unless the
Administrative Agent, acting at the direction of the Majority Banks,
otherwise consents in writing):
(a) except as disclosed by the Company and approved in
writing by the Administrative Agent, acting at the direction of
the Majority Banks, the representations and warranties contained
in Article 4, other than Sections 4.4, 4.7 and 4.10, and the
first sentence of Section 4.6, shall be true and correct in all
material respects on and as of the date of the Advance or the
issuance of the Letter of Credit, as the case may be, as though
made on that date (except to the extent such representations and
warranties specifically relate to an earlier date in which case
they shall be true and correct in all material respects as of
such earlier date);
(b) except for (a) any matter fully covered (subject to
applicable deductibles and retentions) by insurance for which
the insurance carrier has assumed full responsibility, and (b)
matters described in clauses (b) or (c) of Section 4.10
on the Closing Date, there shall be no actions, suits,
proceedings or investigations pending as to which the Company or
any of its Subsidiaries have been served or have received notice
or, to the best knowledge of the Company, threatened against the
Company or any of its Subsidiaries or any Property of any of
them before any Governmental Agency which could reasonably be
expected to constitute a Material Adverse Effect.
(c) the Administrative Agent shall have timely received a
Request for Loan in compliance with Article 2 (or telephonic
request for loan referred to in the second sentence of Section
2.1(b), if applicable) or Request for Letter of Credit in
compliance with Article 2, if applicable; and
(d) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such
other assurances, certificates, documents or consents related to
the foregoing as the Administrative Agent reasonably may
require.
8.3 Any Advance. The obligation of each Bank to make any
Advance is subject to the following conditions precedent (unless the
Administrative Agent, acting on the direction of the Majority Banks,
otherwise consents in writing): (a) the representations and
warranties contained in Sections 4.1 (only with respect to the
Borrowers), 4.2, 4.3, 4.9, 4.11 and 4.14 shall be true and correct in
all material respects on the date of such Advance as though made on
that date (except to the extent such representations and warranties
specifically relate to an earlier date in which case they shall be
true and correct in all material respects as of such earlier date),
(b) no event has occurred and is then continuing that is an Event of
Default and (c) the Administrative Agent shall have timely received a
Request for Loan in compliance with Article 2 (or telephonic request
for loan referred to in the second sentence of Section 2.1(b), if
applicable).
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any
one or more of the following events, whatever the reason
therefor and under any circumstances whatsoever, shall constitute an
"Event of Default":
(a) Any Borrower fails to pay any principal on any of the
Notes, or any portion thereof, on the date when due; or
(b) Any Borrower (i) fails to pay any interest on any of
the Notes, or any portion thereof, or (ii) fails to pay any
other fee or amount payable to the Administrative Agent, the
Banks or the Issuing Banks under any Loan Document, or any
portion thereof, in each case within five (5) Banking Days after
demand therefor; or
(c) Any failure to comply with Section 7.1(d) that is
materially adverse to the interests of the Administrative Agent
or the Banks; or
(d) Any Borrower fails to perform or observe any other
covenant or agreement contained in any Loan Document on its part
to be performed or observed within thirty (30) days after the
giving of notice by the Administrative Agent or the Majority
Banks of such Default; provided, however, that any failure to
observe any of the covenants contained in Sections 6.2 and 6.4,
shall constitute an immediate Event of Default hereunder;
provided, further, that any failure to observe any of the
covenants contained in Section 6.5 shall constitute an Event of
Default upon notice from the Administrative Agent (acting on the
direction of the Majority Banks) to the Company; and provided
further that any failure to observe any of the covenants
contained in Sections 6.7 and 6.8 shall constitute an Event of
Default five (5) Banking Days after knowledge by the Company of
such Default (other than as a result of the giving of notice by
the Administrative Agent or the Majority Banks as hereinafter
provided) or, if earlier, the giving of notice by the
Administrative Agent or the Majority Banks of such Default; or
(e) Any representation or warranty made in this Agreement,
any Notes, any Request for Loan, any Agreement to Participate,
any Request for Letter of Credit or any Competitive Bid Request
was, based on the facts and circumstances reasonably known to
the Borrower at the time such representation and warranty was
made, incorrect when made or reaffirmed in any respect that is
materially adverse to the interests of the Banks; or
(f) The Company or any of its Subsidiaries (i) fails to
pay the principal, or any principal installment, or any interest
or fees or any other amount of any present or future
indebtedness (other than under the Notes) for borrowed money in
an amount in excess of the Cross-Default Amount, or any guaranty
of present or future indebtedness for borrowed money in an
aggregate amount in excess of the Cross-Default Amount, on its
part to be paid, when due (or within any stated grace period),
whether at the stated maturity, upon acceleration, by reason of
required prepayment or otherwise or (ii) fails to perform or
observe any other material term, covenant or agreement on its
part to be performed or observed, or suffers any event to occur,
and such failure or event continues after the applicable grace
period, if any, and is not waived, in connection with any
present or future indebtedness for borrowed money in an amount
in excess of the Cross-Default Amount, or of any guaranty of
present or future indebtedness for borrowed money in excess of
the Cross-Default Amount, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee
on its or their behalf) has the right to declare such
indebtedness due before the date on which it otherwise would
become due; or
(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of the
Banks or satisfaction in full of all the Obligations, ceases to
be in full force and effect or is declared by a court of
competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the
reasonable opinion of the Majority Banks, is materially adverse
to the interests of the Banks; or any Borrower denies that it
has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind same; or
(h) A judgment against the Company or any of its
Subsidiaries is entered for the payment of money in excess of
$30,000,000 and, absent procurement of a stay of execution, such
judgment remains unstayed, unbonded or unsatisfied for thirty
(30) calendar days after the date of entry of judgment; or
(i) The Company, any Borrower or any other Subsidiary of
the Company the Shareholder's Equity of which, as shown on the
most recent consolidated balance sheet, equals or exceeds 10% of
the Shareholder's Equity of the Company and its Consolidated
Subsidiaries as shown on such consolidated balance sheet,
institutes or consents to any proceeding under a Debtor Relief
Law relating to it or to all or any part of its Property, or is
unable or admits in writing its inability to pay its debts as
they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any part
of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and
the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under a Debtor Relief Law
relating to any such Person or to all or any part of its
Property is instituted without the consent of that Person and
continues undismissed or unstayed for sixty (60) calendar days;
or any judgment, writ, warrant of attachment or execution or
similar process is issued or levied against all or any material
part of the Property of any such Person and is not released,
vacated or fully bonded within sixty (60) calendar days after
its issue or levy; or any order for relief shall be entered in
respect of the Company or any Borrower or any such Subsidiary;
or
(j) (i) Any Person or two or more Persons acting in
concert shall acquire beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934) directly or indirectly, of
securities of the Company (or other securities convertible into
such securities) representing 30% or more of the combined voting
power of all securities of the Company entitled to vote in the
election of directors, other than securities having such power
only by reason of the happening of a contingency; or (ii) during
any period of up to 12 consecutive months, commencing before or
after the date of this Agreement, individuals who at the
beginning of such 12-month period were directors of the Company,
or whose nomination for election to the Board of Directors of
the Company was recommended or approved by a vote of at least a
majority of the directors then still in office who were
directors of the Company on the first day of such period, shall
cease for any reason to constitute a majority of the Board of
Directors of the Company; (iii) or
any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement which upon consummation will result in
its or their acquisition of, control over securities of the
Company (or other securities convertible into such securities)
representing 30% or more of the combined voting power of all
securities of the Company entitled to vote in the election of
directors, other than securities having such power only by
reason of the happening of a contingency; provided, however,
that there shall not be an Event of Default pursuant to
subsections (i) or (iii) above with respect to any Persons who
on the date hereof meet the requirements set forth in said
subsections (i) or (iii); or
(k) there shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably
be expected to result in liability of the Company, a Subsidiary
or any of their Current ERISA Affiliates in excess of
$30,000,000 during the term of this Agreement; or there shall
exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate
for all Pension Plans with respect to which the Company or a
Subsidiary has any financial liability, including potential
joint and several liability in the event any such Pension Plan
were to terminate (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds $30,000,000.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent, the Issuing
Banks or the Banks provided for elsewhere in this Agreement, or the
Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of
any Event of Default other than an Event of Default described in
Section 9.1(i):
(1) the commitment to make Advances, issue Letters of
Credit and all other obligations of the Administrative
Agent, the Banks or the Issuing Banks and all rights of the
Borrowers and any other Parties under the Loan Documents
shall be suspended without notice to
or demand upon any Borrower, which are expressly waived by
the Borrowers, except that the Majority Banks (or all of
the Banks, in the case of an Event of Default described in
Sections 9.1(a) or 9.1(b)) may waive the Event of Default
or, without waiving, determine, upon terms and conditions
satisfactory to the Majority Banks (or all of the Banks, as
the case may be), to reinstate the Commitment and make
further Advances and issue additional Letters of Credit,
which waiver or determination shall apply equally to, and
shall be binding upon, all the Banks and the Issuing Banks;
and
(2) the Majority Banks may request each Issuing Bank
to, and each Issuing Bank thereupon shall, demand immediate
deposit by the Borrowers into an account designated by the
applicable Issuing Bank of Cash in an amount equal to the
aggregate effective face amount of all outstanding Letters
of Credit issued by it; and
(3) the Majority Banks may request the Administrative
Agent to, and the Administrative Agent thereupon shall,
terminate the Commitment and declare all or any part of the
unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the
same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by
the Borrowers.
(b) Upon the occurrence of any Event of Default described
in Section 9.1(i):
(1) the commitment to make Advances, issue Letters of
Credit and all other obligations of the Administrative
Agent or the Banks and all rights of the Borrowers and any
other Parties under the Loan Documents shall terminate
without notice to or demand upon any Borrower, which are
expressly waived by the Borrowers; and
(2) an amount equal to the aggregate effective face
amount of all outstanding Letters of Credit shall be
forthwith due and payable to the Issuing Banks, without
protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are waived by the
Borrowers; and
(3) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable
under the Loan Documents shall be forthwith due and
payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are
expressly waived by the Borrowers.
(c) Upon the occurrence of any Event of Default, the Banks
and the Administrative Agent, or any of them, without notice to
or demand upon any Borrower, which are expressly waived by the
Borrowers, may proceed to protect, exercise and enforce their
rights and remedies under the Loan Documents against the
Borrowers and any other party and such other rights and remedies
as are provided by Law or equity.
(d) The order and manner in which the Banks' rights and
remedies are to be exercised shall be determined by the Majority
Banks in their sole discretion, and all payments received by the
Administrative Agent and the Banks, or any of them, shall be
applied first to the costs and expenses (including attorneys'
fees and disbursements) of the Administrative Agent, acting as
Administrative Agent, and of the Banks, and thereafter paid pro
rata to the Banks in the same proportions that the aggregate
Obligations owed to each Bank under the Loan Documents bear to
the aggregate Obligations owed under the Loan Documents to all
the Banks, without priority or preference among the Banks.
Regardless of how each Bank may treat payments for the purpose
of its own accounting, for the purpose of computing the
Borrowers' Obligations hereunder and under the Notes, payments
shall be applied first, to the costs and expenses of the
Administrative Agent, acting as Administrative Agent, and the
Banks, as set forth above, second, to the payment of accrued and
unpaid interest due under any Loan Documents to and including
the date of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of
the Loan Documents), and third, to the payment of all other
amounts (including principal and fees) then owing to the
Administrative Agent or the Banks under the Loan Documents. No
application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of
amounts payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of the
Banks hereunder or thereunder or at law or in equity.
(e) Upon the occurrence of an Event of Default resulting
from or resulting in the default by the Company in the repayment
of its Eurodollar Rate Loans when required by the terms of this
Agreement, the Company shall compensate each Bank in accordance
with Section 3.8(c).
ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative Agent by
the terms thereof or are reasonably incidental, as determined by it,
thereto. This appointment and authorization is intended solely for
the purpose of facilitating the servicing of the Advances and does
not constitute appointment of the Administrative Agent as trustee for
any Bank or as representative of any Bank for any other purpose and,
except as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial
capacity. The Administrative Agent is the agent of the Banks only
and does not assume any agency relationship with any Borrower,
express or implied.
10.2 Administrative Agent and Affiliates. The
Administrative Agent and its Affiliates (and each successor
Administrative Agent) have the same rights and powers under the Loan
Documents as any other Bank and may exercise the same as though it
were not the Administrative Agent to the extent either the
Administrative Agent or an Affiliate has executed this Agreement as a
Bank or has executed an Assignment Agreement as Assignee. The
Administrative Agent and its Affiliates (and each successor
Administrative Agent) may accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with
any Borrower, any subsidiary thereof, or any Affiliate of the Company
or any Subsidiary thereof, without any duty to account therefor to
the Banks. Swiss Bank Corporation
(and each successor Administrative Agent) need not account to any
Bank for any monies received by it for reimbursement of its costs and
expenses as Administrative Agent hereunder, or for any monies
received by it or any Affiliate in its capacity as a Bank hereunder.
The Administrative Agent shall not be deemed to hold a fiduciary
relationship with any Bank and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative
Agent.
10.3 Proportionate Interest of the Banks in any Collateral.
The Administrative Agent, on behalf of all the Banks, shall hold in
accordance with the Loan Documents all items of any collateral or
interests therein received or held by the Administrative Agent.
Subject to the Administrative Agent's and the Banks' rights to
reimbursement for their costs and expenses hereunder (including
attorneys' fees and disbursements and other professional services)
and subject to the application of payments in accordance with Section
9.2(d), each Bank shall have an interest in any collateral or
interests therein in the same proportions that the aggregate
Obligations owed such Bank under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it
has, independently and without reliance upon either Co-Arranger, the
Administrative Agent, any other Bank or the directors, officers,
agents, employees or attorneys of either Co-Arranger or the
Administrative Agent or of any other Bank, and instead in reliance
upon information supplied to it by or on behalf of the Borrowers and
upon such other information as it has deemed appropriate, made its
own independent credit analysis and decision to enter into this
Agreement. Each Bank also agrees that it shall, independently and
without reliance upon either Co-Arranger or the Administrative Agent,
any other Bank or the directors, officers, agents, employees or
attorneys of either Co-Arranger or the Administrative Agent or of any
other Bank, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents.
10.5 Action by the Administrative Agent.
(a) The Administrative Agent may assume that no Default
has occurred and is continuing, unless the Administrative
Agent has failed to receive any payment due from any Borrower
hereunder within the time required under subsection 9.1(a) or
subsection 9.1(b), or the Administrative Agent has received
notice from the Company stating the nature of the Default or has
received notice from a Bank stating the nature of the Default
and that such Bank considers the Default to have occurred and to
be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may
assume that no Event of Default has occurred and is continuing,
the Administrative Agent may, but shall not be required to,
exercise its discretion to act or not act, except that the
Administrative Agent shall be required to act or not act upon
the instructions of the Majority Banks (or of all the Banks, to
the extent required by Section 13.2) and those instructions
shall be binding upon the Administrative Agent and all the
Banks, provided that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial
risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall give
notice thereof to the Banks and shall act or not act upon the
instructions of the Majority Banks (or of all the Banks, to the
extent required by Section 13.2), provided that the
Administrative Agent shall not be required to act or not act if
to do so would be contrary to any Loan Document or to applicable
Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Majority Banks (or
all the Banks, if required under Section 13.2) fail, for five
(5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then
the Administrative Agent, in its sole discretion, may act or not
act as it deems advisable for the protection of the interests of
the Banks.
(e) The Administrative Agent shall have no liability to
any Bank for acting, or not acting, as instructed by the
Majority Banks (or all the Banks, if required under Section
13.2), notwithstanding any other provision hereof.
10.6 Liability of the Administrative Agent. Neither the
Administrative Agent, nor any of its directors, officers, agents,
employees or attorneys shall be liable for any action taken or not
taken by them under or in connection with the Loan Documents, except
for their own gross negligence or willful misconduct. Without
limitation on the foregoing, the Administrative Agent and its
directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Bank as the owner
of that Bank's interest in the Obligations for all purposes of
this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Bank.
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house accountants) and
other professionals or experts selected by it, or with legal
counsel, accountants or other professionals or experts for the
Company and/or its subsidiaries or the Banks, and shall not be
liable for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or
other professionals or experts.
(c) Shall not be responsible to any Bank for any
statement, warranty or representation made in any of the Loan
Documents or in any notice, certificate, report, request or
other statement (written or oral) given or made in connection
with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the
performance or observance by the Company or its Subsidiaries of
any of the terms, conditions or covenants of any of the Loan
Documents or to inspect any collateral or the Property, books or
records of the Company or its Subsidiaries.
(e) Will not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any
other instrument or writing furnished pursuant thereto or in
connection therewith, or any collateral.
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or writing
believed by it to be genuine and signed or sent by the proper
party or parties.
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by the Company or
any Subsidiary or Affiliate thereof or paid or payable to or
received or receivable from any Bank under any Loan Document,
including, without limitation, principal, interest, commitment
fees, Advances and other amounts; provided that, promptly upon
discovery of such an error in computation, the Administrative
Agent, the Banks and (to the extent applicable) the Company
and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to
restore the parties to the position that they would have
occupied had the error not occurred; provided further that, the
obligations of Borrowers under this Section 10.6(g) shall
survive for sixty (60) days following the termination of this
Agreement and such obligations shall not, from and after the
termination of this Agreement, be deemed Obligations for any
purpose under the Loan Documents.
10.7 Indemnification. Each Bank shall, ratably in
accordance with its Pro Rata Share of the Commitment, indemnify and
hold the Administrative Agent, the Co-Arrangers and their directors,
officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, attorneys' fees and
disbursements) that may be imposed on, incurred by or asserted
against them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the failure of the
Borrowers to pay the indebtedness represented by the Notes and
interest thereon) or any action taken or not taken by them as
Administrative Agent or Co-Arrangers thereunder, except such as
result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each
Bank shall reimburse the Administrative Agent and each Co-Arranger
upon demand for that Bank's ratable share of any cost or expense
incurred by the Administrative Agent and such Co-Arranger in
connection with the negotiation, preparation, execution, delivery,
amendment, waiver, restructuring, reorganization (including a
bankruptcy reorganization), enforcement or attempted enforcement of
the Loan Documents, to the extent that the Company or any other party
is required by Section 13.3 to pay that cost or expense but fails to
do so upon demand. Nothing in this Section shall entitle the
Administrative Agent and the Co-Arrangers to recover any amount from
the Banks if and to the extent that such amount has theretofore been
recovered from the Company or any of its Subsidiaries.
10.8 Successor Administrative Agent. If the Administrative
Agent determines that for it to continue as the Administrative Agent
would result in a conflict of interest affecting the Administrative
Agent, or would create an unacceptable risk of significant liability
of the Administrative Agent to a third party, or would otherwise be
inadvisable under prevailing standards of banking prudence, it may
resign as such at any time upon prior written notice to the Company
and the Banks, to be effective upon a successor's acceptance of
appointment as Administrative Agent. The Administrative Agent may
also resign as such absent such a determination by it with the
consent of the Company, which shall not be unreasonably withheld, to
be likewise effective. The Majority Banks at any time may remove the
Administrative Agent by written notice to that effect to be effective
on such date as the Majority Banks designate. In either event: (a)
the Majority Banks, with the written consent of the Company (such
consent not to be unreasonably withheld), shall appoint a successor
Administrative Agent, who must be from among the Banks, provided that
any resigning Administrative Agent shall be entitled to appoint a
successor Administrative Agent from among the Banks, subject to
acceptance of appointment by that successor Administrative Agent, if
the Majority Banks have not appointed a successor Administrative
Agent within thirty (30) days after the date the resigning
Administrative Agent gave notice of resignation; (b) upon a successor
acceptance of appointment as Administrative Agent, the successor will
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent or the
removed Administrative Agent; and (c) upon the effectiveness of any
resignation or removal, the resigning Administrative Agent or the
removed Administrative Agent thereupon will be discharged from its
duties and obligations thereafter arising under the Loan Documents
other than obligations arising as a result of any action or inaction
of the resigning Administrative Agent or the removed Administrative
Agent prior to the effectiveness of such resignation or removal.
Notwithstanding the foregoing, no consent of the Company shall be
required under this Section 10.8 in connection with any change in the
Administrative Agent at any time when an Event of Default has
occurred and is continuing under this Agreement.
10.9 No Obligations of Borrowers. Nothing contained in
this Article 10 shall be deemed to impose upon the Borrowers any
obligation in respect of the due and punctual performance by the
Administrative Agent of its obligations to the Banks under any
provision of this Agreement, and the Borrowers shall have no
liability to the Administrative Agent or any of the Banks in respect
of any failure by the Administrative Agent or any Bank to perform any
of its obligations to the Administrative Agent or the Banks under
this Agreement. Without limiting the generality of the foregoing,
where any provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that such
payments shall be made by a Borrower to the Administrative Agent for
the account of the Banks, such Borrower's obligations to the Banks in
respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner
provided by this Agreement.
10.10 Co-Arrangers. The Co-Arrangers shall have no duties
or obligations under the Loan Documents or otherwise in connection
with the Loans.
ARTICLE 11
COMPANY GUARANTY
11.1 The Guaranty. The Company hereby unconditionally
guaranties the due and punctual payment of all obligations
(including, without limitation, the obligation to pay the principal
amount of and interest on each Advance) of each Borrowing Subsidiary
arising under this Agreement when due, whether by required
prepayment, declaration, demand or otherwise (including amounts which
would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. S 362(a)) (the
"Borrowing Subsidiary Obligations"), and agrees to pay any and all
costs and expenses (including fees and
disbursements of counsel and allocated costs of internal counsel)
incurred by the Administrative Agent and the Banks in enforcing any
rights under this Article 11. The obligations of the Company under
this Article 11, as they may be amended, modified or supplemented
from time to time, are sometimes referred to in this Article 11 as
this "Guaranty".
The Company agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection and waives any
right to require that any resort be had by the Administrative Agent
or any Bank to any security held for payment of the Borrowing
Subsidiary Obligations or to any balance of any deposit account or
credit on the books of the Administrative Agent or any Bank in favor
of the Company or any Borrowing Subsidiary or any other Person.
The Company agrees, in furtherance of the foregoing and not
in limitation of any other right which the Administrative Agent or
any Bank may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrowing Subsidiary to pay any of
its Borrowing Subsidiary Obligations when and as the same shall
become due, whether by required prepayment, declaration, demand or
otherwise (including amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. S 362(a)), the Company will forthwith pay,
or cause to be paid, in cash, to the Administrative Agent for the
ratable benefit of the Banks an amount equal to the sum of the unpaid
principal amount of such Borrowing Subsidiary Obligations then due as
aforesaid, accrued and unpaid interest on such Borrowing Subsidiary
Obligations (including, without limitation, interest which, but for
the filing of a petition in bankruptcy with respect to such Borrowing
Subsidiary (including without limitation, the Company), would accrue
on such Borrowing Subsidiary Obligations).
11.2 Guaranty Unconditional. The obligations of the
Company under this Guaranty shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of any Borrowing
Subsidiary under this Agreement, by operation of law or
otherwise;
(b) any modification or amendment of or supplement to this
Agreement;
(c) any release, non-perfection or invalidity of any
direct or indirect security for any obligation of any Borrowing
Subsidiary under this Agreement;
(d) the failure of the Administrative Agent or any Bank to
assert any claim or demand or to enforce any right or remedy
against any Borrowing Subsidiary, the Company or any other
Person under the provisions of this Agreement or any other
agreement or otherwise;
(e) any change in the corporate existence, structure or
ownership of any Borrowing Subsidiary or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
any Borrowing Subsidiary or its assets or any resulting release
or discharge of any obligation of any Borrowing Subsidiary
contained in this Agreement;
(f) the existence of any claim, set-off or other rights
which the Company may have at any time against any other
Borrower, the Administrative Agent, any Bank or any other
Person, whether in connection herewith or any unrelated
transactions;
(g) the invalidity or unenforceability relating to or
against any Borrowing Subsidiary for any reason of this
Agreement, or any provision of applicable law or regulation
purporting to prohibit the payment by any Borrowing Subsidiary
of the principal of or interest on any Advance or any other
amount payable by any Borrowing Subsidiary under this Agreement,
or the termination of any Borrowing Subsidiary's status as a
Borrowing Subsidiary hereunder;
(h) the termination of a Borrowing Subsidiary's status
hereunder as a "Borrower" pursuant to Section 12.2;
(i) any other act or omission to act or delay of any kind
by any Borrowing Subsidiary, the Administrative Agent, any Bank
or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the obligations of the Company
hereunder.
The obligations of the Company under this Guaranty shall
not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim
of waiver, release, surrender, alteration or compromise of any of the
Borrowing Subsidiary Obligations, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Borrowing Subsidiary Obligations,
discharge of any Borrowing Subsidiary from any of the Borrowing
Subsidiary Obligations in a bankruptcy or similar proceeding, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Company under this Guaranty shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Bank to assert any claim or demand or to
enforce any remedy under this Agreement or any document or instrument
executed by any Borrowing Subsidiary in connection herewith, by any
waiver or modification of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Borrowing
Subsidiary Obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner
or to any extent vary the risk of the Company or which would
otherwise operate as a discharge of the Company as a matter of law or
equity.
11.3 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances. The obligations of the Company under this
Article 11 shall remain in full force and effect until the
Commitments shall have terminated, all Letters of Credit have expired
and the principal of and interest on the Advances and all other
amounts payable by the Borrowers under this Agreement shall have been
paid in full. If at any time any payment of the principal of or
interest on any Advance or any other amount payable by the Borrowers
under this Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any
Borrower or otherwise, the obligations of the Company under this
Article 11 shall be reinstated as though such payment had been due
but not made at such time.
11.4 Waivers by the Company. With respect to this Article
11, the Company hereby waives for the benefit of the Administrative
Agent and the Banks:
(a) any right to require the Administrative Agent or any
Bank, as a condition of payment or performance by the Company
under this Guaranty to (i) proceed against any Borrowing
Subsidiary, any other guarantor of the obligations
of any Borrowing Subsidiary under any other agreement or
guaranty or any other Person, (ii) proceed against or exhaust
any security held from any Borrowing Subsidiary, any other
guarantor or any other Person, or (iii) pursue any other remedy
in the power of the Administrative Agent or any Bank whatsoever;
(b) any defense arising by reason of the incapacity, lack
of authority or any disability or other defense of any Borrowing
Subsidiary including, without limitation, any defense based on
or arising out of the lack of validity or unenforceability of
the Borrowing Subsidiary Obligations or any agreement or
instrument relating thereto or by reason of the cessation from
any cause of the liability of any Borrowing Subsidiary other
than indefeasible payment in full of the Borrowing Subsidiary
Obligations;
(c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that
of the principal, or based upon the Administrative Agent's or
any Bank's errors or omissions in the administration of the
Borrowing Subsidiary Obligations, except behavior which amounts
to bad faith;
(d) any (i) principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of
this Guaranty, any legal or equitable discharge of its
obligations hereunder and the benefit of any statute of
limitations affecting its liability hereunder or the enforcement
thereof, (ii) rights to set-offs, recoupments and counterclaims,
(iii) rights to deferral or modification of the Company's
obligations hereunder by reason of any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief
proceeding, (iv) promptness, diligence and any requirement that
the Administrative Agent or any Bank protect, secure, perfect or
insure any security interest or lien or any property subject
thereto or exhaust any right or take any action against any
Borrowing Subsidiary or any other Person or any collateral;
(e) notice, demand, presentment, protests, notices of
protest, notices of dishonor and notices of any action or
inaction, including acceptance of this Guaranty, notices of
default under this Agreement or any agreement or instrument
related thereto, notice of any renewal, extension or
modification of the Borrowing Subsidiary Obligations or any
agreement related thereto, notice of any other extension of
credit to any Borrowing Subsidiary; and
(f) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerates
guarantors or sureties, or which may conflict with the terms of
this Guaranty including, without limitation, the provisions of
California Civil Code Sections 2809, 2810, 2819, 2839, 2845,
2846, 2847, 2848, 2849, 2850, 2899 and 3433.
11.5 Subrogation, Etc. Upon payment by the Company of any
sum to the Administrative Agent for the ratable benefit of any Bank
as provided above, so long as any of the Borrowing Subsidiary
Obligations of a Borrowing Subsidiary shall remain outstanding
hereunder, all rights of the Company against such Borrowing
Subsidiary arising as a result thereof, by way of right of
subrogation or otherwise, shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full
of all the Borrowing Subsidiary Obligations of that Borrowing
Subsidiary to the Administrative Agent and the Banks. In furtherance
of the foregoing, and not in limitation thereof, the Company agrees
that until the Borrowing Subsidiary Obligations of a Borrowing
Subsidiary shall have been paid in full, the Commitment has
terminated and all Letters of Credit issued for the account of such
Borrowing Subsidiary have expired, the Company shall withhold
exercise of any right of subrogation, or any right to enforce any
remedy which the Administrative Agent or any Bank may have against
that Borrowing Subsidiary. If any amount shall be paid to the
Company on account of such subrogation rights at any time prior to
the date when the Borrowing Subsidiary Obligations of such Borrowing
Subsidiary have been paid in full, the Commitment has terminated and
all Letters of Credit issued for the account of such Borrowing
Subsidiary have expired, such amount shall be held in trust for the
benefit of the Banks and shall be paid to the Administrative Agent
for the benefit of the Banks to be credited and applied upon the
Borrowing Subsidiary Obligations of such Borrowing Subsidiary,
whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Administrative Agent for the
benefit of the Banks as collateral security for any Obligations
thereafter existing.
ARTICLE 12
ADDITIONAL BORROWERS; TERMINATION OF BORROWERS
12.1 Agreement to Participate. Any Eligible Subsidiary may
become a party to this Agreement and become a "Borrower" for all
purposes hereof on any date after the date hereof upon the
satisfaction of the following conditions:
(a) receipt by the Administrative Agent on or before such
date of an Agreement to Participate executed by such Eligible
Subsidiary and acknowledged and consented to by the
Administrative Agent and the Company;
(b) receipt by the Administrative Agent of a certificate
dated such date from the senior financial officer of such
Eligible Subsidiary to the effect that (i) no Default has
occurred and is continuing on such date, (ii) the
representations and warranties of such Eligible Subsidiary and
its Subsidiaries contained in the Agreement to Participate
executed by such Eligible Subsidiary are true, correct and
complete on and as of such date, and (iii) such Eligible
Subsidiary is a wholly-owned Subsidiary set forth in Schedule
1.2 have been satisfied;
(c) receipt by the Administrative Agent on or before such
date of such additional documents it may reasonably request
relating to the existence of such Eligible Subsidiary, the
corporate power and authority of such Eligible Subsidiary, the
validity of such Eligible Subsidiary's obligations under the
Agreement to Participate executed by such Eligible Subsidiary
and under this Agreement, and other matters relevant thereto and
hereto, all in form and substance satisfactory to the
Administrative Agent; and
(d) receipt by the Administrative Agent on or before such
date of the Committed Advance Notes dated such date and executed
by such Eligible Subsidiary, one Note in favor of each Bank in a
principal amount equal to that Bank's Pro Rata Share of the
Tranche A Commitment, and the Competitive Advance Notes dated
such date and executed by such Eligible Subsidiary in favor of
each Bank, each in the principal amount of Tranche A Commitment.
Each Bank hereby authorizes the Administrative Agent to
sign on such Bank's behalf an Agreement to Participate delivered
pursuant to clause (a) above, and the Company and each Bank hereby
agree that, upon satisfaction by any Eligible Subsidiary of the
conditions set forth in the preceding clauses (a), (b) and (c), such
Eligible Subsidiary shall become a "Borrower" hereunder for all
purposes hereof. The Administrative Agent shall promptly notify the
Banks of whenever an Eligible Subsidiary becomes a Borrower.
12.2 Notice of Termination. Any Borrower, other than the
Company, that has no Advances outstanding to any Bank and is not the
account party on any Letter of Credit, may cease to be a "Borrower"
for the purposes of this Agreement (and all commitments as to such
Borrower shall thereupon terminate) upon notice, in form and
substance satisfactory to the Administrative Agent, by such Borrower
to the Administrative Agent; provided that such notice shall not
affect any obligation of such Borrower theretofore incurred. The
Administrative Agent shall send prompt written notice to each Bank of
any Borrower ceasing, pursuant to this subsection, to be a Borrower.
ARTICLE 13
MISCELLANEOUS
13.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Administrative Agent, the Issuing
Banks and the Banks provided herein or in any Note or other Loan
Document are cumulative and not exclusive of any right, power,
privilege or remedy provided by Law or equity. No failure or delay
on the part of the Administrative Agent, the Issuing Banks or any
Bank in exercising any right, power, privilege or remedy may be, or
may be deemed to be, a waiver thereof; nor may any single or partial
exercise of any right, power, privilege or remedy preclude any other
or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted
for the sole benefit of the Administrative Agent, the Issuing Banks
and the Banks; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan, Competitive
Advance or Letter of Credit without prejudicing the Administrative
Agent's, either Issuing Bank's or the Banks' rights to assert them in
whole or in part in respect of any other Loan, Competitive Advance or
Letter of Credit.
13.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this
Agreement or any other Loan Document, no approval or consent
thereunder, and no consent to any departure by any Borrower or any
other party therefrom, may in any event be effective unless the same
shall be in writing and signed by the Majority Banks (or signed by
the Administrative Agent at the direction of the Majority Banks)
(and, in the case of amendments, modifications or supplements of or
to any Loan Document to which a Borrower is a party, the approval in
writing of such Borrower), and then only in the specific instance and
for the specific purpose given; and, without the approval in writing
of all the Banks, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal or principal prepayments with respect to, any Note, or
to decrease the rate of interest payable on any Note or the
amount of any commitment fee payable to any Bank, or any other
fee or amount payable to any Bank under the Loan Documents;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of
interest on, any Note or any installment of any commitment fee,
or any other fee or amount payable to any Bank under the Loan
Documents, or to extend the term of the Commitments, or to
release any collateral for the Obligations;
(c) To amend or modify the provisions of the definitions
of "Commitment", "Tranche A Commitment", "Tranche B Commitment",
"Tranche A Maturity Date", "Tranche B Maturity Date", or
"Majority Banks"; or this Section;
(d) To release any guarantor; or
(e) To amend or modify any provision of this Agreement
that expressly requires the consent or approval of all the
Banks.
In addition, no amendment, modification, supplement, termination,
waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Banks required above to take
such action, affect the rights or duties of the Administrative Agent
acting in such capacity under this Agreement or any Note. No
amendment, modification, supplement, termination, waiver or consent
shall, unless in writing and signed by (i) the
Tranche A Issuing Bank, affect any provisions hereof relating to the
Tranche A Letters of Credit or (ii) the Tranche B Issuing Banks,
affect any provisions hereof relating to the Tranche B Letters of
Credit or the Tranche B Commitment. Any amendment, modification,
supplement, termination, waiver or consent pursuant to this Section
shall apply equally to, and shall be binding upon, all the Banks, the
Issuing Banks, the Administrative Agent and each Borrower. Copies of
all amendments, modifications, supplements, terminations, waivers and
consents shall be distributed to the Administrative Agent, each Bank,
the Issuing Banks and each Borrower.
13.3 Costs, Expenses and Taxes. The Company shall pay on
demand the reasonable costs and expenses of the Co-Arrangers and the
Administrative Agent in connection with the negotiation, preparation,
execution and delivery of the Loan Documents (including, without
limitation, the reasonable legal fees and out-of-pocket expenses of
O'Melveny & Myers), and, if a Borrower requests the amendment,
waiver, refinancing, restructuring or reorganization of the Loan
Documents or if any Default has occurred and remains continuing, of
the Administrative Agent, the Issuing Banks and the Banks in
connection with any amendment, waiver, refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and in any
event enforcement or attempted enforcement of the Loan Documents, and
any matter related thereto, including, without limitation, out-of-
pocket expenses and the reasonable fees and out-of-pocket expenses of
any legal counsel, independent public accountants and other outside
experts retained by the Administrative Agent, the Issuing Banks or
any Bank, and including, without limitation, any costs, expenses or
fees incurred or suffered by the Administrative Agent, the Issuing
Banks or any Bank in connection with or during the course of any
bankruptcy or insolvency proceedings of the Company or any Subsidiary
thereof. The Company shall pay any and all documentary and other
taxes (other than income or gross receipts taxes generally applicable
to banks) and all costs, expenses, fees and charges payable or
determined to be payable in connection with the filing or recording
of this Agreement, any other Loan Document or any other instrument or
writing to be delivered hereunder or thereunder, or in connection
with any transaction pursuant hereto or thereto, and shall reimburse,
hold harmless and indemnify the Co-Arrangers, the Administrative
Agent, the Issuing Banks and the Banks from and against any and all
loss, liability or legal or other expense with respect to or
resulting from any delay in paying or failure to pay any tax, cost,
expense, fee or charge or
that any of them may suffer or incur by reason of the failure of any
party (other than the Co-Arrangers, the Administrative Agent, the
Issuing Banks or any Bank) to perform any of its Obligations. Any
amount payable to the Co-Arrangers, the Administrative Agent, the
Issuing Banks or any Bank under this Section shall bear interest from
the second Banking Day following the date of demand for payment at
the Default Rate.
13.4 Nature of Banks' Obligations. The obligations of the
Banks hereunder are several and not joint or joint and several.
Nothing contained in this Agreement or any other Loan Document and no
action taken by the Administrative Agent, the Issuing Banks or the
Banks or any of them pursuant hereto or thereto may, or may be deemed
to, make the Banks a partnership, an association, a joint venture or
other entity, either among themselves or with the Company or any
Affiliate of the Company. Each Bank's obligation to make any Advance
pursuant hereto is several and not joint or joint and several, and is
not conditioned upon the performance by all other Banks of their
obligations to make Advances. If any Bank defaults in its obligation
to make any Advance to a Borrower after the fulfillment of all
conditions precedent to that Advance, then the Company may terminate
this Agreement with respect to that Bank upon fulfillment of each of
the following conditions:
(i) the Borrower shall have paid to the affected Bank the
principal amount of all outstanding Advances made by that Bank,
together with all accrued but unpaid interest, costs, fees and
expenses related thereto; and
(ii) the Company shall have notified the Administrative
Agent and each of the Banks of the termination.
A default by any Bank will not increase the amount of the Commitment
attributable to any other Bank, and any Bank not in default may, if
it desires, assume in such proportion as the nondefaulting Banks
agree the obligations of any Bank in default, but is not obligated to
do so. Should the Company elect, as aforesaid, to terminate this
Agreement with respect to any Bank, then the Commitment shall
automatically be reduced by a percentage equal to the Pro Rata Share
of the Commitment of the affected Bank, and the remaining Bank or
Banks shall have that Pro Rata Share in the reduced Commitment which
is allocable to their Advances.
13.5 Survival. All representations and warranties
contained herein or in any other Loan Document, or in any certificate
or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Advances
hereunder and the execution and delivery of the Notes, and have been
or will be relied upon by the Administrative Agent, the Issuing Banks
and each Bank, notwithstanding any investigation made by the
Administrative Agent, the Issuing Banks or any Bank or on their
behalf. The obligations of the Company under Sections 3.7 and 3.8
shall survive for thirty (30) days following the termination of this
Agreement and the repayment of the Notes.
13.6 Notices. Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands, directions and
other communications provided for hereunder or under any other Loan
Document must be in writing and must be mailed, telegraphed,
telecopied or delivered to the appropriate party at the address set
forth on the signature pages of this Agreement or other applicable
Loan Document or, as to any party to any Loan Document, at any other
address as may be designated by it in a written notice sent to all
other parties to such Loan Document in accordance with this Section.
Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or
permitted by any Loan Document is given by mail it will be effective
on the earlier of receipt or the fifth calendar day after deposit in
the United States mail with first class or airmail postage prepaid;
if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by telecopier, when sent; or
if given by personal delivery, when delivered.
13.7 Execution of Loan Documents. Unless the
Administrative Agent otherwise specifies with respect to any Loan
Document, this Agreement and any other Loan Document may be executed
in any number of counterparts and any party hereto or thereto may
execute any counterpart, each of which when executed and delivered
will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when
taken together will be deemed to be but one and the same instrument.
The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts
hereof or thereof, as the case may be, have been executed by all the
parties hereto or thereto.
13.8 Binding Effect; Assignment. This Agreement and the
other Loan Documents shall be binding upon and shall inure to the
benefit of the parties hereto and thereto and their respective
successors and assigns, except that a Borrower and/or its Affiliates
may not assign their rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the Banks.
Each Bank shall have the right in accordance with this Section to
sell, assign, pledge or transfer all or any portion of its rights
hereunder or under the Note of that Bank and to grant any
participation or other interest herein or therein; provided that no
such sale, assignment, pledge, transfer or participation grant shall
make any assignment which would have the effect of result in
requiring registration under the Securities Act of 1933, as amended,
or qualification under any state securities laws. Each Bank
represents that it is not acquiring the Notes with a view to the
distribution thereof within the meaning of the Securities Act of
1933, as amended (subject to any requirement that disposition of the
Notes must be within the control of such Bank). Any Bank may assign,
from time to time, any or all of its rights and obligations hereunder
and all or any portion of its share of the Commitments to an
Affiliate of that Bank or, with the approval of the Company (which
approval will not be unreasonably withheld), to any other financial
institution acceptable to the Administrative Agent, subject to the
assumption by the assignee of the share of the Commitments so
assigned. Any assignment shall also require (i) the consent of the
Tranche A Issuing Bank, and (ii) to the extent such assignment is of
amounts under the Tranche B Commitment, the consent of ABN AMRO Bank
N.V., Los Angeles International Branch. Banks may not assign more
than 50% of their respective Pro Rata Share of the Commitments as in
effect on the date of this Agreement, except that a Bank may assign
all or any portion of its Pro Rata Share of the Commitments to an
Affiliate of that Bank. Any such assignment shall be evidenced by an
Assignment Agreement substantially in the form of Exhibit J, executed
by each of the parties and a copy of which shall be delivered to the
Administrative Agent. Upon such execution and delivery, from and
after the effective date specified in each Assignment Agreement (y)
the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it
pursuant to such Assignment Agreement, have the rights and
obligations of a Bank hereunder and (z) the Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment Agreement, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto). The Pro Rata
Share of each Bank of the Commitments hereunder shall be modified to
reflect the Pro Rata Share of the Commitment of such assignee and, if
any such assignment occurs while any Loan is outstanding new Notes
shall, upon surrender of the assigning Bank's Notes, be issued to
such assignee and to the assigning Bank as necessary to reflect the
new Pro Rata Share of the Commitments of the Bank and of assignee.
Notwithstanding any other provision set forth in this Agreement, any
Bank may assign, as collateral or otherwise, all or any portion of
its rights under this Agreement (including without limitation, rights
to payments of principal and/or interest under the Notes held by it),
but not its obligations, to any Federal Reserve Bank or any Affiliate
in order that such Affiliate may assign such rights to any Federal
Reserve Bank, in each case, without notice to or consent from any
Borrower or the Administrative Agent; provided, however, that such
Federal Reserve Bank or Affiliate shall not, by reason of such
assignment, become a "Bank" hereunder for any purpose whatsoever and
any such Bank shall not be released from any of its obligations
hereunder as a result of such assignment. Any Bank may grant, from
time to time, a participation interest in the rights of that Bank
under its Note and this Agreement to any financial institution,
without notice to or the approval of the Administrative Agent or the
Borrowers. The grant of such a participation interest shall be on
such terms as the granting Bank determines are appropriate, provided
only that (a) the holder of such a participation interest shall not
have any of the rights of a Bank under this Agreement except, if the
participation agreement so provides, (A) rights under Sections 3.7
and 3.8, provided that the aggregate amount that the Company shall be
required to pay under Sections 3.7 and 3.8 with respect to any Pro
Rata Share of any Commitment or any Loan (including amounts paid to
participants) shall not exceed the amount that the Company would have
had to pay if no participation agreements had been entered into, and
(B) rights under Section 3.9 and (b) the consent of the holder of
such a participation interest shall not be required for amendments or
waivers of provisions of the Loan Documents other than those which
(i) increase the monetary amount of the Commitment, (ii) decrease any
fee or any other monetary amount payable to the Banks, (iii) extend
the date upon which any monetary amount is payable to the Banks, or
(iv) release any guarantor. No participant shall constitute a "Bank"
under this Agreement or any Loan Document, and the Borrowers shall
continue to deal solely and directly with the Administrative Agent
and the Banks.
13.9 Setoff Rights. If an Event of Default has occurred
and is continuing, the Administrative Agent, an Issuing Bank or any
Bank (but only with the consent of the Majority Banks) may, to the
extent permitted by applicable Laws, exercise its rights under
applicable Laws to setoff and apply any funds in any deposit account
maintained with it by any Borrower and/or any Property of any
Borrower in its possession against the Obligations.
13.10 Sharing of Setoffs. Each Bank severally agrees that
if it, through the exercise of any right of setoff, banker's lien or
counterclaim against any Borrower, or otherwise, receives payment,
through any means, of the Obligations held by it that is in excess of
that Bank's proportionate share of the Total Outstandings as applied
to such payment, then: (a) The Bank exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment
shall purchase, and shall be deemed to have simultaneously purchased,
from the other Bank a participation in the Obligations held by the
other Bank and shall pay to the other Bank a purchase price in an
amount so that the share of the Obligations held by each Bank after
the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment shall be in the same proportion that existed prior
to the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment; and (b) Such other adjustments and purchases
of participations shall be made from time to time as shall be
equitable to ensure that all of the Banks share any payment obtained
in respect of the Obligations ratably in accordance with each Bank's
share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the
right of setoff, banker's lien, counterclaim or otherwise is
thereafter recovered from the purchasing Bank by any Borrower or any
Person claiming through or succeeding to the rights of any Borrower,
the purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery, but
without interest. Each Bank that purchases a participation in the
Obligations pursuant to this Section shall from and after the
purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as
though the purchasing Bank were the original owner of the Obligations
purchased. Each Borrower expressly consents to the foregoing
arrangements and agrees that any Bank holding a participation in an
Obligation so purchased may exercise any and all rights of setoff,
banker's lien or counterclaim with respect to the participation as
fully as if the Bank were the original owner of the Obligation
purchased; provided, however, that each Bank agrees that it shall not
exercise any right of set off, banker's lien or counterclaim without
first obtaining the consent of the Majority Banks.
13.11 Indemnity by the Company. The Company agrees to
indemnify, save and hold harmless each Co-Arranger, each Issuing
Bank, the Administrative Agent and each Bank and their Affiliates,
directors, officers, agents, attorneys, advisors and employees
(collectively the "Indemnitees") from and against: (a) Any and all
claims, demands, actions or causes of action if the claim, demand,
action or cause of action arises out of or relates to the Commitment,
the use or contemplated use of proceeds of any Advance, any drawing
under any Letter of Credit, any transaction contemplated by this
Agreement, or any relationship or relationship alleged to exist by
any Borrower, its Affiliates or any other third party of any
Indemnitee to any Borrower related to this Agreement; (b) Any
administrative or investigative proceeding by any Governmental Agency
arising out of or related to a claim, demand, action or cause of
action described in clause (a) above; and (c) Any and all
liabilities, losses, costs or expenses (including attorneys' fees and
disbursements and other professional services) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its own
gross negligence or willful misconduct. If any claim, demand, action
or cause of action is asserted against any Indemnitee, such
Indemnitee shall promptly notify the Company, but the failure to so
promptly notify the Company shall not affect the Company's
obligations under this Section unless such failure materially
prejudices the Company's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter provided.
If requested by the Company in writing, such Indemnitee shall in good
faith contest the validity, applicability and amount of such claim,
demand, action or cause of action and shall permit the Company to
participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which the Company may be
liable for payment of indemnity hereunder shall give the Company
written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such
claim or proceeding and shall obtain the Company's prior consent. In
connection with any claim, demand, action or cause of action covered
by this Section against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel selected
by the Indemnitees and reasonably acceptable to the Company; provided
that, if such legal counsel determines in good faith that
representing all such Indemnitees would or could result in a conflict
of interest under Laws or ethical principles applicable to such legal
counsel or that a defense or counterclaim is available to an
Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or
to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation by legal
counsel selected by that Indemnitee and reasonably acceptable to the
Company, with all such legal counsel using reasonable efforts to
avoid unnecessary duplication of effort by counsel for all
Indemnitees; provided further that the amount of the legal fees to be
reimbursed by the Company shall be limited to an amount reasonably
determined following consultation among the Company, the
Administrative Agent, the Banks and their respective legal counsel,
to be equal to the amount that would have been expended if the
Indemnitees have been represented by one counsel. Any obligation or
liability of the Company to any Indemnitee under this Section shall
survive the expiration or termination of this Agreement and the
repayment of all Advances and the payment and performance of all
other Obligations owed to the Banks.
13.12 Nonliability of the Banks. Each Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of any Borrower made
by or through the Administrative Agent or the Banks are for
purposes of administration of the Loan Documents only and no
Borrower is entitled to rely upon the same;
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative
Agent or the Banks pursuant to the Loan Documents, neither the
Administrative Agent nor the Banks shall be deemed to have
warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term,
provision or condition thereof, and such acceptance or approval
thereof shall not constitute a warranty or
representation to anyone with respect thereto by the
Administrative Agent or the Banks;
(c) The relationship between the Borrowers and the
Administrative Agent, the Issuing Banks and the Banks is, and
shall at all times remain, solely that of borrowers and lenders;
none of the Administrative Agent, the Issuing Banks or the Banks
shall under any circumstance be construed to be partners or
joint venturers of any Borrower or its Affiliates; none of the
Administrative Agent, the Issuing Banks or the Banks shall under
any circumstance be deemed to be in a relationship of confidence
or trust or a fiduciary relationship with any Borrower or its
Affiliates, or to owe any fiduciary duty to any Borrower or its
Affiliates; none of the Administrative Agent, the Issuing Banks
or the Banks undertake or assume any responsibility or duty to
any Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform any Borrower or its
Affiliates of any matter in connection with their Property or
the operations of any Borrower or its Affiliates; each Borrower
and its Affiliates shall rely entirely upon their own judgment
with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent, the Issuing
Banks or the Banks in connection with such matters is solely for
the protection of the Administrative Agent, the Issuing Banks
and the Banks and neither the Borrowers nor any other Person is
entitled to rely thereon; and
(d) The Administrative Agent, the Issuing Banks and the
Banks shall not be responsible or liable to any Person for any
loss, damage, liability or claim of any kind relating to injury
or death to Persons or damage to Property caused by the actions,
inaction or negligence of the Company and/or its Affiliates and
the Company hereby indemnifies and holds the Administrative
Agent, the Issuing Banks and the Banks harmless from any such
loss, damage, liability or claim.
13.13 No Third Parties Benefited. This Agreement is made
for the purpose of defining and setting forth certain obligations,
rights and duties of the Borrowers, the Administrative Agent, the
Issuing Banks and the Banks in connection with the Loans, Advances
and Letters of Credit, and is made for the sole benefit of the
Borrowers, the Administrative Agent, the Issuing Banks and the Banks,
and the Administrative
Agent's, the Issuing Banks' and the Banks' successors and assigns.
Except as provided in Sections 13.8 and 13.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
13.14 Confidentiality. Each Bank agrees to hold any
confidential information that it may receive from any Borrower
pursuant to this Agreement in confidence: except for disclosure: (a)
To other Banks; (b) To legal counsel, accountants and other
professional advisors to any Borrower or any Bank; (c) To regulatory
officials having jurisdiction over that Bank; (d) As required by Law
or legal process or in connection with any legal proceeding to which
that Bank and that Borrower are adverse parties; and (e) To
Affiliates of that Bank or to another financial institution, in each
case, in connection with a disposition or proposed disposition to
that financial institution of all or part of that Bank's interests
hereunder or a participation interest in its Note, provided that such
disclosure is made subject to an appropriate confidentiality
agreement on terms substantially similar to this Section. For
purposes of the foregoing, "confidential information" shall mean any
information respecting the Company or its Subsidiaries reasonably
considered by the Company to be confidential, other than (i)
information previously filed with any Governmental Agency and
available to the public, (ii) information previously published in any
public medium from a source other than, directly or indirectly, that
Bank, and (iii) information previously disclosed by a Borrower to any
Person not associated with that Borrower without a written
confidentiality agreement substantially similar to this Section.
Nothing in this Section shall be construed to create or give rise to
any fiduciary duty on the part of the Administrative Agent, the
Issuing Banks or the Banks to the Borrowers.
13.15 Further Assurances. The Company and its
Subsidiaries shall, at their expense and without expense to the
Banks, the Issuing Banks or the Administrative Agent, do, execute and
deliver such further acts and documents as any Bank, the Issuing
Banks or the Administrative Agent from time to time reasonably
requires for the assuring and confirming unto the Banks, the Issuing
Banks or the Administrative Agent of the rights hereby created or
intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
13.16 Removal of Bank. As of the date any Bank is removed
at the request of the Company, whether pursuant to Section 3.7,
Section 3.8 or otherwise, (i) all obligations of such Bank under this
Agreement shall be released and terminated and (ii) such Bank's Pro
Rata Share of the Commitment shall be terminated, including such
Bank's participation in any Letter of Credit. The removal of any
such Bank shall be subject to the satisfaction of the following
conditions:
(a) The Company shall compensate any such Bank so replaced
for (i) any breakage costs incurred due to the removal of such
Bank, as determined by such Bank in good faith, and (ii) all
accrued interest and fees owing to such Bank pursuant to this
Agreement as of the date such Bank is so replaced; and
(b) Such Bank shall receive payment of principal of all
Advances made to any Borrower hereunder.
13.17 Integration. This Agreement, together with the
other Loan Documents, comprises the complete and integrated agreement
of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. In the
event of any conflict between the provisions of this Agreement and
those of any other Loan Document, the provisions of this Agreement
shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent, the Issuing
Banks or the Banks in any other Loan Document shall not be deemed a
conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
13.18 Governing Law. Each Loan Document shall be governed
by, and construed and enforced in accordance with, the Laws of the
state of California applicable to contracts made and performed in
such state.
13.19 Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable or
invalid as to any party or in any jurisdiction shall, as to that
party or jurisdiction, be inoperative, unenforceable or invalid
without affecting the remaining provisions or the operation,
enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
13.20 Independent Covenants. Each covenant in Articles 5,
6 and 7 is independent of the other covenants in those Articles; the
breach of any such covenant shall not be excused by the fact that the
circumstances underlying such breach would be permitted by another
such covenant.
13.21 Headings. Article and Section headings in this
Agreement and the other Loan Documents are included for convenience
of reference only and are not part of this Agreement or the other
Loan Documents for any other purpose.
13.22 Time of the Essence. Time is of the essence of the
Loan Documents.
13.23 WAIVER OF JURY TRIAL. EACH BORROWER, THE
ADMINISTRATIVE AGENT, EACH BANK AND THE ISSUING BANKS HEREBY AGREES
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF
THE LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION AND THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this
transaction, including without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory
claims. Each Borrower, the Administrative Agent, each Bank and the
Issuing Banks acknowledge that this waiver is a material inducement
to enter into a business relationship, that each has already relied
on the waiver in entering into this Agreement, and that each will
continue to rely on the waiver in their related future dealings. Each
Borrower, the Administrative Agent, each Bank and the Issuing Banks
further warrant and represent that each has reviewed this waiver with
its legal counsel, and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THE LOAN. In the event of litigation, this Agreement may be filed
as a written consent to a trial by the court.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
THE COMPANY:
AMGEN INC.
By: /s/Kathryn E. Falberg
Title: Treasurer
Address:
Amgen Inc.
Amgen Center
1840 DeHavilland Drive
Thousand Oaks, California 91320-1789
Attn: Treasurer
cc: Secretary
Telecopier: (805) 499-8011
Telephone: (805) 447-1000
BORROWING SUBSIDIARIES:
AMGEN MANUFACTURING, INC.
By: /s/Kathryn E. Falberg
Title: Treasurer
Address:
Amgen Inc.
Amgen Center
1840 DeHavilland Drive
Thousand Oaks, California 91320-1789
Attn: Treasurer
cc: Secretary
Telecopier: (805) 499-8011
Telephone: (805) 447-1000
THE ADMINISTRATIVE AGENT:
SWISS BANK CORPORATION,
NEW YORK BRANCH
By: /s/James R. Williams
Title: Director, Credit Risk Management
By: /s/Gary Riddell
Title: Director, Credit Risk Management
Address:
222 Broadway
New York, New York 10038
Attn: Client Services Department
Telecopier: (212) 574-3478
Telephone: (212) 574-3480
THE ISSUING BANKS:
SWISS BANK CORPORATION,
NEW YORK BRANCH
By: /s/James R. Williams
Title: Director, Credit Risk Management
By: /s/Gary Riddell
Title: Director, Credit Risk Management
Address:
Swiss Bank Tower
10 East 50th Street
New York, New York 10022
Attn: Letter of Credit Department
Telecopier: (212) 574-3679
Telephone: (212) 574-3637
ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH
By: /s/Eileen M. Coleman
Title: Assistant Vice President
By: /s/John A. Miller
Title: Vice President
Address:
300 S. Grand Avenue
Suite 1115
Los Angeles, CA 90071
Attn: Letter of Credit Department
Telecopier: (213) 687-2061
Telephone: (213) 687-2306
THE BANKS:
SWISS BANK CORPORATION,
SAN FRANCISCO BRANCH
By: /s/David L. Parrott
Title: Associate Director, Merchant
Banking
By: /s/Hans-Ueli Surber
Title: Executive Director, Merchant
Banking
Address:
101 California Street
Suite 1700
San Francisco, California 94111
Attn: David Parrot
Telecopier: (415) 989-7570
Telephone: (415) 774-3336
CITICORP USA, INC.
By: /s/Barbara A. Cohen
Title: Vice President
Address:
725 Figueroa Street
Los Angeles, California 90017
Attn: Deborah Ironson/Banker
Telecopier: (213) 623-3592
Telephone: (213) 239-1424
ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH
By: /s/Eileen M. Coleman
Title: Assistant Vice President
By: /s/John A. Miller
Title: Vice President
Address:
300 S. Grand Avenue
Suite 1115
Los Angeles, California 90071
Attn: Ellen Coleman
John Miller
Telecopier: (213) 687-2061
Telephone: (213) 687-2306
BANCA COMMERCIALE ITALIANA, LOS ANGELES
FOREIGN BRANCH
By: /s/Iacopo Navone
Title: Vice President and Manager
Address:
555 S. Flower Street, 43rd Floor
Los Angeles, California 90071
Attn: Jack Wityak
Telecopier: (213) 624-0457
Telephone: (213) 624-0440
BANK OF MONTREAL
By: /s/J. Donald Higgins
Title: Managing Director
Address:
601 S. Figueroa Street
Suite 4900
Los Angeles, California 90017
Attn: Grace Labatt
Telecopier: (213) 239-0680
Telephone: (213) 239-0607
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH
By: /s/Gil S. Realon
Title: Vice President
Address:
601 S. Figueroa Street (W5-4)
Los Angeles, California 90017
Attn: Gil S. Realon
U.S. Banking Department
Telecopier: (213) 823-4912 or
(213) 896-7475
Telephone: (213) 896-7494
NATIONSBANK OF TEXAS, N.A.
By: /s/Michelle Shafroth
Title: Senior Vice President
Address:
444 South Flower Street
Suite 1500
Los Angeles, California 90071
Attn: Michele Shafroth
Telecopier: (213) 624-5812
Telephone: (213) 236-4907
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/Gregory P. Brown
Title: Vice President
By: /s/Judy A. Maahs
Title: Assistant Vice President
Address:
707 Wilshire Boulevard W16-13
Los Angeles, California 90071
Attn: Gregory P. Brown
Telecopier: (213) 614-2569
Telephone: (213) 614-3084