EXHIBIT 10.1
$250,000,000
CREDIT AGREEMENT
dated as of
May 17, 1996
among
Premark International, Inc.
The Banks Listed Herein
and
Bank of America National Trust and Savings Association,
as Agent
Arranged by
BA Securities, Inc.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Accounting Terms and Determinations . . . . . . . . . 14
SECTION 1.3. Types of Borrowings . . . . . . . . . . . . . . . . . 15
ARTICLE II
THE CREDITS. . . . . . . . . . . . . . . 15
SECTION 2.1. Commitments to Lend . . . . . . . . . . . . . . . . . 15
SECTION 2.2. Notice of Committed Borrowings. . . . . . . . . . . . 15
SECTION 2.3. Money Market Borrowings . . . . . . . . . . . . . . . 16
SECTION 2.4. Notice to Banks; Funding of Loans . . . . . . . . . . 20
SECTION 2.5. Notes . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.6. Maturity of Loans . . . . . . . . . . . . . . . . . . 22
SECTION 2.7. Interest Rates. . . . . . . . . . . . . . . . . . . . 22
SECTION 2.8. Facility, Arrangement and Agency Fees . . . . . . . . 25
SECTION 2.9. Optional Termination or Reduction of
Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.10. Mandatory Termination of Commitments . . . . . . . . 26
SECTION 2.11. Method of Electing Interest Rates. . . . . . . . . . 26
SECTION 2.12. Optional Prepayments . . . . . . . . . . . . . . . . 28
SECTION 2.13. General Provisions as to Payments. . . . . . . . . . 29
SECTION 2.14. Funding Losses . . . . . . . . . . . . . . . . . . . 29
SECTION 2.15. Computation of Interest and Fees . . . . . . . . . . 30
SECTION 2.16. Withholding Tax Exemption. . . . . . . . . . . . . . 30
SECTION 2.17. Regulation D Compensation. . . . . . . . . . . . . . 31
ARTICLE III
CONDITIONS . . . . . . . . . . . . . . . 31
SECTION 3.1. Effectiveness; Termination of 1994
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.2. Borrowings. . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 34
SECTION 4.1. Corporate Existence and Power. . . . . . . . . . . . . 34
SECTION 4.2. Corporate and Governmental Authorization;
No Contravention . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.3. Binding Effect. . . . . . . . . . . . . . . . . . . . 34
SECTION 4.4. Financial Information . . . . . . . . . . . . . . . . 34
SECTION 4.5. Litigation. . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.6. Compliance with ERISA . . . . . . . . . . . . . . . . 35
SECTION 4.7. Environmental Matters . . . . . . . . . . . . . . . . 36
SECTION 4.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.9. Subsidiaries. . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.10. Not an Investment Company. . . . . . . . . . . . . . 36
SECTION 4.11. Compliance with Laws. . . . . . . . . . . . . . . . . 36
SECTION 4.12. Full Disclosure . . . . . . . . . . . . . . . . . . . 37
ARTICLE V
COVENANTS . . . . . . . . . . . . . . . 37
SECTION 5.1. Information . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.2. Maintenance of Property; Insurance. . . . . . . . . . 39
SECTION 5.3. Preservation of Corporate Existence, Etc. . . . . . . 40
SECTION 5.4. Debt. . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.5. Minimum Consolidated Net Worth. . . . . . . . . . . . 41
SECTION 5.6. Negative Pledge . . . . . . . . . . . . . . . . . . . 41
SECTION 5.7. Consolidations, Mergers and Sales of
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.8. Use of Proceeds . . . . . . . . . . . . . . . . . . . 43
SECTION 5.9. Change in Business. . . . . . . . . . . . . . . . . . 43
ARTICLE VI
DEFAULTS. . . . . . . . . . . . . . . . 43
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . . 43
SECTION 6.2. Notice of Default . . . . . . . . . . . . . . . . . . 45
ARTICLE VII
THE AGENT . . . . . . . . . . . . . . . 46
SECTION 7.1. Appointment and Authorization; "Agent" . . . . . . . 46
SECTION 7.2. Delegation of Duties. . . . . . . . . . . . . . . . . 46
SECTION 7.3. Liability of Agent. . . . . . . . . . . . . . . . . . 46
SECTION 7.4. Reliance by Agent . . . . . . . . . . . . . . . . . . 47
SECTION 7.5. Notice of Default . . . . . . . . . . . . . . . . . . 47
SECTION 7.6. Credit Decision . . . . . . . . . . . . . . . . . . . 48
SECTION 7.7. Indemnification of Agent. . . . . . . . . . . . . . . 48
SECTION 7.8. Agent in Individual Capacity. . . . . . . . . . . . . 49
SECTION 7.9. Successor Agent . . . . . . . . . . . . . . . . . . . 49
SECTION 7.10. Withholding Tax. . . . . . . . . . . . . . . . . . . 50
ARTICLE VIII
CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . 51
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.2. Illegality. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.3. Increased Cost and Reduced Return . . . . . . . . . . 53
SECTION 8.4. Loans Substituted for Affected Fixed Rate
Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.5. Election of Company to Terminate or
Substitute Banks . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . 56
SECTION 9.1. Notices . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.2. No Waivers. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.3. Costs and Expenses. . . . . . . . . . . . . . . . . . 57
SECTION 9.4. Company Indemnification . . . . . . . . . . . . . . . 58
SECTION 9.5. Sharing of Set-offs . . . . . . . . . . . . . . . . . 58
SECTION 9.6. Amendments and Waivers. . . . . . . . . . . . . . . . 59
SECTION 9.7. Successors and Assigns. . . . . . . . . . . . . . . . 60
SECTION 9.8. Assignments, Participations, etc. . . . . . . . . . . 60
SECTION 9.10. Governing Law. . . . . . . . . . . . . . . . . . . . 62
SECTION 9.11. Waiver of Jury Trial . . . . . . . . . . . . . . . . 63
SECTION 9.12. Counterparts; Integration. . . . . . . . . . . . . . 63
SECTION 9.13. Confidentiality. . . . . . . . . . . . . . . . . . . 63
Schedules and Exhibits
Schedule 3.1(iv) - Dart Spinoff
Schedule 5.9 - Lines of Business
Exhibit A - Note
Exhibit B - Notice of Committed Borrowing
Exhibit C - Money Market Quote Request
Exhibit D - Invitation for Money Market Quotes
Exhibit E - Money Market Quote
Exhibit F - Opinion of Counsel for the Company
Exhibit G - Assignment and Acceptance Agreement
Exhibit H - Purchase/Leaseback Transaction Summary
Exhibit I - Opinion of Counsel for Dart (Spinoff)
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of May 17, 1996 among PREMARK
INTERNATIONAL, INC., the BANKS listed on the signature pages
hereto, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for the Banks.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as
used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.3.
"Adjusted CD Rate" has the meaning set forth in Section
2.7(b).
"Administrative Questionnaire" means, with respect to
each Bank, an administrative questionnaire in the form prepared
by the Agent and submitted to the Agent (with a copy to the
Company) duly completed by such Bank.
"Affiliate" means with respect to any Person, the
Parent of such Person, any Subsidiary of such Person, and any
Person that has a Parent in common with such first Person.
"Agent" means BofA in its capacity as agent for the
Banks hereunder, and its successors in such capacity.
"Agent-Related Persons" means BofA and any successor
agent arising under Section 7.9, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Applicable Lending Office" means, with respect to any
Bank, (i) in the case of its Domestic Loans, its Domestic Lending
Office, (ii) in the case of its Offshore Loans, its Offshore
Lending Office and (iii) in the case of its Money Market Loans,
its Money Market Lending Office.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assessment Rate" has the meaning set forth in Section
2.7(b).
"Assignee" has the meaning set forth in Section 9.8.
"Attorney Costs" means and includes all reasonable fees
and disbursements of any law firm or other external counsel, and,
without duplication, the reasonable allocated cost of internal
legal services and all disbursements of internal counsel.
"Bank" means each lender listed on the signature pages
hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors.
"Bank Default" has the meaning set forth in Section
8.5.
"Bank Proceeding" has the meaning set forth in Section
8.5.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. section 101, et seq.).
"Base Rate" means, for any day, a rate per annum equal
to the higher of (i) the Reference Rate for such day and (ii) the
sum of 1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan which bears
interest at the Base Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or the
provisions of Article VIII or (ii) an overdue amount which was a
Base Rate Loan immediately before it became overdue.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" has the meaning set forth in Section 1.3.
"CD Loan" means (i) a Committed Loan which bears
interest at a CD Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or (ii)
an overdue amount which was a CD Loan, or, in the case of each of
clauses (i) and (ii), interest or penalty with respect thereto,
immediately before it became overdue.
"CD Rate" means a rate of interest determined pursuant
to Section 2.7(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means Bankers Trust Company,
Chemical Bank and BofA and each such other bank as may be
appointed pursuant to Section 9.8(f).
"Change in Control" shall be deemed to have occurred at
such times as (i) any Person (other than an Investment Fund), or
two or more Persons (other than Investment Funds) acting in
concert, directly or indirectly acquire after the Effective Date,
beneficial ownership (within the meaning of rule 13d-3 of the
Securities and Exchange Commission under the Securities Act of
1934) of 20% or more of the outstanding shares of voting stock of
the Company, or (ii) individuals who constitute the Board of
Directors of the Company on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board of Directors of the Company at any time. For purposes
hereof, (A) "Investment Fund" shall mean a mutual fund (1) having
in excess of 1,000 beneficial investors and (2) which does not
operate as a "vulture" fund or "takeover" fund and (B) any
Person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's
shareholders, was approved by a vote of at least three-fourths of
the directors comprising the Incumbent Board (either by a
specific vote or by approval of a proxy statement of the Company
in which such Person is named as a nominee for director, without
objection to such nomination) shall be, for purposes of
clause (ii) above, considered as though such Person were a member
of the Incumbent Board (and upon such event, the former director
that has been replaced thereby shall no longer be considered a
member of the Incumbent Board.)
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the signature
pages hereof, as such amount may be reduced from time to time
pursuant to Section 2.9.
"Committed Loan" means a loan made by a Bank pursuant
to Section 2.1; provided that, if any such loan or loans (or
portions thereof) are combined or subdivided pursuant to a Notice
of Interest Rate Election, the term "Committed Loan" shall refer
to the combined principal amount resulting from such combination
or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Company" means Premark International, Inc., a Delaware
corporation, and its successors.
"Company's 1995 Form 10-K" means the Company's Annual
Report on Form 10-K for 1995, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Consolidated Debt" means at any date the Debt of the
Company and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Company and its
Consolidated Subsidiaries, determined as of such date.
"Consolidated Total Assets" means at any date the value
of the assets of the Company and its Subsidiaries, determined on
a consolidated basis as of such date, as the same would be
reflected on the financial statements required to be delivered
pursuant to Section 5.1(a).
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated
financial statements if such statements were prepared as of such
date.
"Dart" means Dart Industries Inc., a Delaware
corporation, and its successors.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money (including, without limitation, the fixed and contingent
reimbursement obligations of such Person for standby letters of
credit issued on behalf of the Company or any Consolidated
Subsidiary in support of third party indebtedness), (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted
accounting principles, (v) all Debt of others secured by a Lien
on any asset of such Person, whether or not such Debt is assumed
by such Person, and (vi) all Debt of others Guaranteed by such
Person; provided that Debt shall not include (A) "back-to-back"
borrowings by foreign Subsidiaries of the Company in foreign
currencies for which there are related deposits or receivables of
equivalent amounts so long as (y) such borrowings are not
included in Consolidated Debt under generally accepted accounting
principles and (z) the borrowing arrangements include rights of
offset allowing defaulted principal and accrued interest to be
offset against the related repayment obligation or (B) the seller
acquisition financing secured by a Lien on certain computer
equipment as described in Exhibit H.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in Xxx
Xxxxxxxxx, Xxxxxxxxxx xxx Xxxxxxx, Xxxxxxxx are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank, its
office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice
to the Company and the Agent; provided that any Bank may so
designate separate Domestic Lending Offices for its Base Rate
Loans, on the one hand, and its CD Loans, on the other hand, in
which case all references herein to the Domestic Lending Office
of such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" has the meaning set forth
in Section 2.7(b).
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.1.
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is
acting through a branch or agency located in the United States;
and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank, (ii) a
Subsidiary of a Person of which a Bank is a Subsidiary, or (iii)
a Person of which a Bank is a Subsidiary.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Company and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with the Company, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"Euro-Dollar Reference Banks" means the principal
London offices of Bankers Trust Company, Chemical Bank and BofA
and each such other bank as may be appointed pursuant to Section
9.8(f).
"Euro-Dollar Reserve Percentage" has the meaning set
forth in Section 2.17.
"Event of Default" has the meaning set forth in Section
6.1.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Federal Reserve
Bank of New York (including any such successor, "H.15(519)") on
the preceding Domestic Business Day opposite the caption "Federal
Funds (Effective)"; or, if for any relevant day such rate is not
so published on any such preceding Domestic Business Day, the
rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection
2.8(b).
"Fixed Rate Loans" means CD Loans or Offshore Loans or
Money Market Loans (excluding Money Market LIBOR Loans bearing
interest at the Reference Rate pursuant to Section 8.1) or any
combination of the foregoing.
"Foreign Subsidiary" means (i) any Subsidiary organized
under the laws of a jurisdiction outside the United States and
(ii) any branch or office located outside the United States of
any other Subsidiary.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Group of Loans" means at any time a group of Loans
consisting of (i) all Committed Loans which are Base Rate Loans
at such time or (ii) all Committed Loans which are Fixed Rate
Loans having the same Interest Period at such time; provided
that, if Committed Loans of any particular Bank are converted to
or made as Base Rate Loans pursuant to Section 8.2 or 8.4, such
Loans shall be included in the same Group or Groups of Loans from
time to time as they would have been in if they had not been so
converted or made.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term or
Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"IBOR" has the meaning set forth in Section 2.7(c).
"Indemnified Liabilities" has the meaning specified in
Section 9.4.
"Indemnified Person" has the meaning specified in
Section 9.4.
"Identifiable Assets" means identifiable assets within
the meaning of Item 101(b) of Regulation S-K promulgated by the
Securities and Exchange Commission.
"Insolvency Proceeding" means, with respect to any
Person, (a) any case, action or proceeding with respect to such
Person before any court or other Governmental Authority relating
to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Period" means:
(1) with respect to each Offshore Loan, a period
commencing on the date of borrowing specified in the
applicable Notice of Committed Borrowing or on the date
specified in the applicable Notice of Interest Rate Election
and ending one, two, three or six months thereafter, as the
Company may elect in the applicable Notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not an Offshore Business Day shall be
extended to the next succeeding Offshore Business Day
unless such Offshore Business Day falls in another
calendar month, in which case such Interest Period
shall, subject to clause (1)(c) below, end on the next
preceding Offshore Business Day;
(b) any Interest Period which begins on the last
Offshore Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period)
shall, subject to clause (1)(c) below, end on the last
Offshore Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(2) with respect to each CD Loan, a period commencing
on the date of borrowing specified in the applicable Notice
of Committed Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending 30,
60, 90 or 180 days thereafter, as the Company may elect in
the applicable Notice; provided that:
(a) any Interest Period (other than an Interest
Period determined pursuant to clause (2)(b) below)
which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(3) with respect to each Money Market LIBOR Borrowing,
the period commencing on the date of such Borrowing and
ending one, two, three or six months thereafter, as the
Company may elect in accordance with Section 2.3; provided
that:
(a) any Interest Period which would otherwise end
on a day which is not an Offshore Business Day shall be
extended to the next succeeding Offshore Business Day
unless such Offshore Business Day falls in another
calendar month, in which case such Interest Period
shall, subject to clause (3)(c) below, end on the next
preceding Offshore Business Day;
(b) any Interest Period which begins on the last
Offshore Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period)
shall, subject to clause (3)(c) below, end on the last
Offshore Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date;
(4) with respect to each Money Market Absolute Rate
Loan, the period commencing on the date of such Borrowing
and ending such number of days thereafter (but not less than
7 nor more than 180 days thereafter) as the Company may
elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Domestic Business Day shall,
subject to clause 4(b) below, be extended to the next
succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market
Quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 2.3.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Domestic Loan or an Offshore Loan or a
Money Market Loan and "Loans" means Domestic Loans or Offshore
Loans or Money Market Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the
Fee Letter and all other documents delivered to the Agent or any
Bank in connection herewith or therewith.
"London Interbank Offered Rate" means, with respect to
any applicable Interest Period, the average (rounded upward, if
necessary, to the next higher 1/16th of 1%) of the respective
rates per annum at which deposits in dollars are offered to each
of the Euro-Dollar Reference Banks in the London interbank market
at approximately 11:00 A.M. (London time) two Offshore Business
Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Money Market
LIBOR Loan of such Euro-Dollar Reference Bank to which such
Interest Period is to apply and for a period of time comparable
to such Interest Period.
"Material Debt" means (i) Debt (other than the Notes)
of the Company or one of its Consolidated Subsidiaries arising
under a single indenture, loan agreement or similar document in
an aggregate principal amount exceeding $10,000,000, or (ii) Debt
(other than the Notes) of the Company and/or one or more of its
Consolidated Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount
exceeding $25,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of $25,000,000.
"Material Subsidiary" means at any time, any Subsidiary
of the Company which as of such time meets the definition of a
"significant subsidiary" contained as of the date hereof in
Regulation S-K of the Securities and Exchange Commission.
"Money Market Absolute Rate" has the meaning set forth
in Section 2.3(d).
"Money Market Absolute Rate Loan" means a loan to be
made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank,
its Domestic Lending Office or such other office, branch or
Affiliate of such Bank as it may hereafter designate as its Money
Market Lending Office by notice to the Company and the Agent;
provided that any Bank may from time to time by notice written to
the Company and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and
its Money Market Absolute Rate Loans, on the other hand, in which
case all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a
Bank pursuant to a LIBOR Auction (including such loan bearing
interest at the Reference Rate pursuant to Section 8.1).
"Money Market Loan" means a Money Market LIBOR Loan or
a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.3(d).
"Money Market Quote" means an offer by a Bank to make a
Money Market Loan in accordance with Section 2.3.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group is then making or
accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"1994 Agreement" means the Credit Agreement dated as of
June 15, 1994, as heretofore or hereafter from time to time
amended, modified or supplemented, among the Company, the banks
listed therein and Xxxxxx Guaranty Trust Company of New York, as
agent.
"Notes" means the promissory notes of the Company,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Company to repay the Loans, and "Note" means
any one of such promissory notes issued hereunder.
"Notice" means a Notice of Borrowing or a Notice of
Interest Rate Election, as the case may be.
"Notice of Borrowing" means a Notice of Committed
Borrowing or a Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set
forth in Section 2.2.
"Notice of Interest Rate Election" has the meaning set
forth in Section 2.11.
"Notice of Money Market Borrowing" has the meaning set
forth in Section 2.3(f).
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document
owing by the Company to any Bank, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"Offshore Business Day" means any Domestic Business Day
on which commercial banks are open for international business
(including dealings in dollar deposits) and on which dealings are
carried on in the applicable offshore dollar interbank market.
"Offshore Lending Office" means, as to each Bank, its
office, branch or Affiliate located at its address set forth in
its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Offshore Lending Office) or
such other office, branch or Affiliate of such Bank as it may
hereafter designate as its Offshore Lending Office by notice to
the Company and the Agent.
"Offshore Loan" means (i) a Committed Loan which bears
interest at an Offshore Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or (ii)
an overdue amount which was an Offshore Loan, or, in the case of
each of clauses (i) and (ii), interest or penalty with respect
thereto, immediately before it became overdue.
"Offshore Rate" means a rate of interest determined
pursuant to Section 2.7(c).
"Parent" means, with respect to any Person, any other
Person controlling such Person. A Person shall be deemed to
control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership
interests, by contract, or otherwise.
"Participant" has the meaning set forth in Section
9.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by Title
IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a member of
the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Premark FEG" means Premark FEG Corporation, a Delaware
corporation, and its successors.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Quarterly Date" means the last day of each January,
April, July and October.
"Reference Banks" means the CD Reference Banks, the
Euro-Dollar Reference Banks or BofA, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Reference Rate" means the rate of interest in effect
for such day as publicly announced from time to time by BofA in
San Francisco, California, as its "reference rate." (The
"reference rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below
such announced rate.)
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Required Banks" means at any time Banks having at
least 51% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding Notes evidencing
at least 51% of the aggregate unpaid principal amount of the
Loans.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Company.
"Termination Date" means May 17, 2001.
"Total Capitalization" means the aggregate of
Consolidated Net Worth plus the Debt of the Company and its
Consolidated Subsidiaries (without duplication).
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value
of all benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits (excluding
any accrued but unpaid contributions), all determined as of the
then most recent valuation date for such Plan, but only to the
extent that such amount represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA and using the assumptions used for funding the
Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States
of America.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the
Company.
SECTION 1.2. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time
to time; provided that, if the Company notifies the Agent that
the Company wishes to amend any covenant in Article V to
eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if
the Agent notifies the Company that the Required Banks wish to
amend Article V for such purpose), then the Company's compliance
with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and
the Required Banks.
SECTION 1.3. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Banks
to be made to the Company pursuant to Article II on a single date
and for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Offshore Borrowing" is
a Borrowing comprised of Offshore Loans) or by reference to the
provisions of Article II under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under
Section 2.1 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.3 in which the Bank participants are determined
on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. From time to time
prior to the Termination Date, each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make loans
to the Company pursuant to this Section 2.1 from time to time in
amounts such that the aggregate principal amount of Committed
Loans by such Bank at any one time outstanding shall not exceed
the amount of its Commitment. Each Borrowing under this Section
shall be in an aggregate principal amount of $5,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may
be in the aggregate amount available in accordance with Section
3.2(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing
limits, the Company may borrow under this Section, prepay Loans
to the extent permitted by Section 2.12, and, subject to the
terms and conditions set forth in this Agreement, reborrow at any
time prior to the Termination Date.
SECTION 2.2. Notice of Committed Borrowings. The
Company shall give the Agent a notice in the form of Exhibit B
hereto (a "Notice of Committed Borrowing") (x) not later than
12:00 p.m. (New York City time) on the date of each Base Rate
Borrowing, (y) not later than 10:45 a.m. (New York City time) on
the second Domestic Business Day before each CD Borrowing and (z)
not later than 10:45 a.m. (New York City time) on the second
Offshore Business Day before each Offshore Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing or
an Offshore Business Day in the case of an Offshore
Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are
to bear interest initially at the Base Rate or at a CD Rate
or an Offshore Rate, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the initial Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
It is understood that more than one Borrowing may occur on the
same day.
SECTION 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.1, the Company may, as set forth
in this Section, request the Banks to make offers to make Money
Market Loans to the Company. The Banks may, but shall have no
obligation to, make such offers and the Company may, but shall
have no obligation to, accept any such offers in the manner set
forth in this Section.
(b) Money Market Quote Request. When the Company
wishes to request offers to make Money Market Loans under this
Section 2.3, it shall transmit to the Agent by telex or facsimile
transmission a Money Market Quote Request substantially in the
form of Exhibit C hereto so as to be received no later than 12:00
p.m. (New York City time) on (x) the fourth Offshore Business Day
prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the
date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be an
Offshore Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate
Auction;
(ii) the aggregate amount of such Borrowing, which
shall be $5,000,000 or a larger multiple of $1,000,000;
provided, however, such requested Borrowing, together with
the then-outstanding principal amount of all Loans shall not
exceed the combined Commitments then in effect;
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period; and
(iv) whether the Money Market Quotes requested are to
set forth a Money Market Margin or a Money Market Absolute
Rate.
The Company may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request and may request different aggregate principal amounts
(each of which shall be $5,000,000 or a larger multiple of
$1,000,000) for each such Interest Period. No Money Market Quote
Request shall be given within five Offshore Business Days (or
such other number of days as the Company and the Agent may agree)
of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Agent shall send to
the Banks by telex or facsimile transmission an Invitation for
Money Market Quotes substantially in the form of Exhibit D
hereto, which shall constitute an invitation by the Company to
each Bank to submit Money Market Quotes offering to make the
Money Market Loans to which such Money Market Quote Request
relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.1 not later than (x) 12:00 p.m. (New
York City time) on the third Offshore Business Day prior to
the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 10:00 a.m. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by
the Agent (or any Affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the
Agent or such Affiliate notifies the Company of the terms of
the offer or offers contained therein not later than (x)
fifteen minutes prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) fifteen minutes prior
to the deadline for the other Banks, in the case of an
Absolute Rate Auction. Subject to Articles III and VI, any
Money Market Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions
of the Company.
(ii) Each Money Market Quote shall be in substantially
the form of Exhibit E hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans
for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers, by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded if
it:
(A) is not substantially in conformity with
Exhibit E hereto or does not specify all of the
information required by subsection 2.3(d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection 2.3(d)(i).
(e) Notice to Company. The Agent shall promptly
notify the Company of the terms (x) of any Money Market Quote
submitted by a Bank that is in accordance with subsection 2.3(d)
and (y) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Invitation to
Make Money Market Quotes. Any such subsequent Money Market Quote
shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the
Company shall specify (A) the aggregate principal amount of Money
Market Loans for which offers have been received for each
Interest Period specified in the related Money Market Quote
Request, (B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any
single Money Market Quote may be accepted.
(f) Acceptance and Notice by Company. Not later than
1:30 p.m. (New York City time) on (x) the third Offshore Business
Day prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 11:30 a.m. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Company
shall notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection 2.3(e). In the
case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Company
may accept any Money Market Quote in whole or in part; provided
that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be,
(iv) the principal amount of all Money Market
Borrowings plus the aggregate principal amount of other
Loans then outstanding shall not exceed the then aggregate
Commitment of the Banks, and
(v) the Company may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market
Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers
are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Agent may
deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence
of manifest error.
SECTION 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of
such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Company.
(b) Not later than 2:00 p.m. (New York City time) on
the date of each Borrowing, each Bank participating therein shall
make available its share of such Borrowing, in Federal or other
funds immediately available in San Francisco, California, to the
Agent at its address specified in or pursuant to Section 9.1.
Unless the Agent determines that any applicable condition
specified in Article III has not been satisfied, the Agent will
make the funds so received from the Banks available to the
Company at the Agent's aforesaid address.
(c) Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not
make available to the Agent such Bank's share of such Borrowing,
the Agent may assume that such Bank has made such share available
to the Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.4 and the Agent may, but shall
not be required to, in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If
and to the extent that such Bank shall not have so made such
share available to the Agent, such Bank and the Company severally
agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Company until
the date such amount is repaid to the Agent, at the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
SECTION 2.5. Notes. (a) The Loans of each Bank shall
be evidenced by a single Note payable to the order of such Bank
for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's
Loans.
(b) Each Bank may, by notice to the Company and the
Agent, request that its Loans of a particular type be evidenced
by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans
of the relevant type. Each reference in this Agreement to the
"Note" of such Bank shall be deemed to refer to and include any
or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.1(a)(iii), the Agent shall mail such Note to such Bank.
Each Bank shall record the date and amount of each Loan made by
it and the date and amount of each payment of principal made by
the Company with respect thereto, and may, if such Bank so elects
in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure of any
Bank to make any such recordation or endorsement shall not affect
the obligations of the Company hereunder or under the Notes.
Each Bank is hereby irrevocably authorized by the Company so to
endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.6. Maturity of Loans. (a) Each Committed
Loan shall mature, and the principal amount thereof shall be due
and payable on the Termination Date.
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.
SECTION 2.7. Interest Rates. (a) Each Base Rate Loan
shall bear interest on the outstanding principal amount thereof,
for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day.
Such interest shall be payable quarterly in arrears on each
Quarterly Date and on each date a Base Rate Loan is converted to
an Offshore Loan or a CD Loan. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the
sum of 1% plus the rate otherwise applicable to Base Rate Loans
for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during each
Interest Period applicable thereto, at a rate per annum equal to
the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to such Interest Period; provided that if any CD Loan
or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less
than 30 days, such portion shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is
longer than 90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD Loan
shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 1% plus the higher of (i)
the sum of the CD Margin for such day, plus the Adjusted CD Rate
applicable to the Interest Period for such Loan and (ii) the rate
applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ] *
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
___________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100th of 1%
The "CD Base Rate" applicable to any Interest Period is
the rate of interest determined by the Agent to be the
average (rounded upward, if necessary, to the next higher
1/100th of 1%) of the prevailing rates per annum bid at
10:00 a.m. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the principal amount of the CD Loan of
such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day the
maximum reserve percentage (expressed as a decimal) which is
in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the reserve requirement (including, without
limitation, any ordinary, marginal, emergency, supplemental,
special and other reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding
$5,000,000,000 in respect of new non-personal time deposits
in dollars in New York City having a maturity comparable to
the related Interest Period and in an amount of $100,000 or
more. The Adjusted CD Rate shall be adjusted automatically
on and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. section 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Offshore Loan shall bear interest on the
outstanding principal amount thereof, for each day during each
Interest Period applicable thereto, at a rate per annum equal to
the sum of the IBOR Margin for such day plus the applicable IBOR.
Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day
thereof.
"IBOR Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "IBOR" applicable to any Interest Period means the
rate of interest per annum determined by the Agent as the
rate at which dollar deposits in the approximate amount of
BofA's Offshore Rate Loan for such Interest Period would be
offered by BofA's Grand Cayman Branch, Grand Cayman B.W.I.
(or such other office as may be designated for such purpose
by BofA), to major banks in the offshore dollar interbank
market at their request at approximately 11:00 a.m. (New
York City time) two Offshore Business Days prior to the
commencement of such Interest Period.
(d) Any overdue principal of or interest on any
Offshore Loan shall bear interest, payable on demand, for each
day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal
to the sum of 1% plus the higher of (i) the sum of the IBOR
Margin for such day plus the applicable IBOR and (ii) the IBOR
Margin for such day plus the quotient obtained (rounded upward,
if necessary, to the next higher 1/100th of 1%) by dividing (x)
the rate per annum at which one day (or, if such amount due
remains unpaid more than three Offshore Business Days, then for
such other period of time not longer than three months as the
Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to BofA are offered by BofA's
Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as
may be designated for such purpose by BofA), to major banks in
the offshore dollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two Offshore
Business Days for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or,
if the circumstances described in clause (a) or (b) of Section
8.1 shall exist, at a rate per annum equal to the sum of 1% plus
the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.1, each Money Market LIBOR
Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the London Interbank Offered Rate
for such Interest Period (determined in accordance with Section
2.7(c) as if the related Money Market LIBOR Borrowing were a
Committed Offshore Borrowing) plus (or minus) the Money Market
Margin quoted by the Bank making such Loan in accordance with
Section 2.3. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to
the Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.3. Such interest shall be
payable for each Interest Period on the last day thereof and, if
such Interest Period is longer than three months, at intervals of
three months after the first day thereof. Any overdue principal
of or interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum
equal to the sum of 1% plus the Reference Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give prompt
notice to the Company and the participating Banks by telex or
facsimile transmission of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence
of manifest error.
(g) Each Reference Bank agrees to use its best efforts
to furnish quotations to the Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely
quotation, the Agent shall determine the relevant interest rate
on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations
is available on a timely basis, the provisions of Section 8.1
shall apply.
SECTION 2.8. Facility, Arrangement and Agency Fees.
(a) The Company shall pay to the Agent for the account
of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such
facility fee shall accrue (i) from and including the Effective
Date to but excluding the Termination Date, on the daily
aggregate amount of the Commitments (whether used or unused) and
(ii) from and including the Termination Date to but excluding the
date the Loans shall be repaid in their entirety, on the daily
outstanding principal amount of the Loans. Accrued fees under
this subsection 2.8(a) shall be payable quarterly on each
Quarterly Date and upon the date of termination of the
Commitments in their entirety and, if later, the date the Loans
shall be repaid in their entirety.
(b) The Company shall pay an arrangement fee to the
Arranger for the Arranger's own account, and shall pay an agency
fee to the Agent for the Agent's own account, as required by the
confidential letter agreement ("Fee Letter") between the Company
and the Arranger and Agent dated April 16, 1996.
SECTION 2.9. Optional Termination or Reduction of
Commitments. The Company may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the Commitments
at any time, if no Loans are outstanding at such time or (ii)
ratably reduce the Commitments from time to time by an aggregate
amount of at least $5,000,000 or any larger multiple thereof;
unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the then-outstanding
principal amount of the Loans would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance
with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied ratably to each
Bank according to each Bank's Commitment prior to such reduction.
All accrued commitment fees to, but not including, the effective
date of any reduction or termination of Commitments, shall be
paid on the effective date of such reduction or termination.
SECTION 2.10. Mandatory Termination of Commitments.
The Commitments shall terminate on the Termination Date, and any
Loans then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
SECTION 2.11. Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing shall bear
interest initially at the type of rate specified by the Company
in the applicable Notice of Committed Borrowing. Thereafter, the
Company may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in
each case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Company may
elect to convert such Loans to CD Loans as of any Domestic
Business Day or to Offshore Loans as of any Offshore
Business Day;
(ii) if such Loans are CD Loans, the Company may elect
to convert such Loans to Base Rate Loans or Offshore Loans
or elect to continue such Loans as CD Loans for an
additional Interest Period, in each case effective on the
last day of the then current Interest Period applicable to
such Loans; and
(iii) if such Loans are Offshore Loans, the Company may
elect to convert such Loans to Base Rate Loans or CD Loans
or elect to continue such Loans as Offshore Loans for an
additional Interest Period, in each case effective on the
last day of the then current Interest Period applicable to
such Loans.
Notwithstanding the foregoing, if any Default then exists, the
Company shall be deemed to have elected to convert all such
Offshore Loans and CD Loans into Base Rate Loans effective as of
the last day of the then current Interest Period applicable to
such Loans. Each election described in clauses (i), (ii) and
(iii) above shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Agent at least three Offshore
Business Days before the conversion or continuation selected in
such notice is to be effective (unless the relevant Loans are to
be converted from Domestic Loans to Domestic Loans of the other
type or continued as Domestic Loans of the same type for an
additional Interest Period, in which case such notice shall be
delivered to the Agent at least two Domestic Business Days before
such conversion or continuation is to be effective). A Notice of
Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group
of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to
which such Notice applies, and the remaining portion to which it
does not apply, are each $5,000,000 or any larger multiple of
$1,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to which
such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall
comply with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans are
Fixed Rate Loans, the duration of the initial Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Offshore Loans for an additional Interest Period, the
duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of
Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election
from the Company pursuant to subsection 2.11(a) above, the Agent
shall promptly notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Company. If the
Company fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Committed Fixed Rate
Loans, such Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto.
SECTION 2.12. Optional Prepayments. (a) The Company
may, upon at least one Domestic Business Day's notice to the
Agent, prepay a Group of Base Rate Loans (or a Money Market
Borrowing bearing interest at the Reference Rate pursuant to
Section 8.1) in whole at any time, or from time to time in part
in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Group or Borrowing.
(b) Subject to Section 2.14, the Company may, upon at
least two Domestic Business Day's notice to the Agent, in the
case of a Group of CD Loans or upon at least three Offshore
Business Days' notice to the Agent, in the case of a Group of
Offshore Loans, prepay the Loans comprising such a Group on the
last day of any Interest Period applicable to such Group, in
whole at any time, or from time to time in part in amounts
aggregating $5,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the
several Banks included in such Group.
(c) Except as provided in subsection 2.12(a) above,
the Company may not prepay all or any portion of the principal
amount of any Money Market Loans prior to the maturity thereof.
(d) Upon receipt of a notice of prepayment pursuant to
this Section 2.12, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share (if any) of
such prepayment and such notice shall not thereafter be revocable
by the Company.
SECTION 2.13. General Provisions as to Payments. (a)
The Company shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 3:00 p.m.
(New York City time) on the date when due, in Federal or other
funds immediately available in San Francisco, California, to the
Agent at its address referred to in Section 9.1. The Agent will
promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Offshore Loans
shall be due on a day which is not an Offshore Business Day, the
date for payment thereof shall be extended to the next succeeding
Offshore Business Day unless such Offshore Business Day falls in
another calendar month, in which case the date for payment
thereof shall be the next preceding Offshore Business Day.
Whenever any payment of principal of, or interest on, the Money
Market Loans shall be due on a day which is not an Offshore
Business Day, the date for payment thereof shall be extended to
the next succeeding Offshore Business Day unless such Offshore
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Offshore Business
Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable
for such extended time.
(b) Unless the Agent shall have received notice from
the Company prior to the date on which any payment is due to the
Banks hereunder that the Company will not make such payment in
full, the Agent may assume that the Company has made such payment
in full to the Agent on such date and the Agent may, but shall
not be required to, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that the Company
shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank
repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Company makes
any payment of principal with respect to any Fixed Rate Loan or
any Fixed Rate Loan is converted to a Base Rate Loan (pursuant to
Article VI or VIII or otherwise) on any day other than the last
day of an Interest Period applicable thereto, or the end of an
applicable period fixed pursuant to Section 2.7(d), or if the
Company fails to borrow or prepay any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section
2.4(a) or 2.12(d), the Company shall reimburse each Bank within
15 days after demand for any resulting loss or expense incurred
by it (or by an existing or committed Participant in the related
Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin for the period after any such
payment or conversion or failure to borrow or prepay, provided
that such Bank shall have delivered to the Company a certificate
containing a computation in reasonable detail of the amount of
such loss or expense, which certificate shall be conclusive in
the absence of manifest error. For purposes of this Section
2.14, each Bank may compute its losses or expenses as if each
Fixed Rate Loan made by such Bank was funded by or on behalf of
such Bank by a deposit corresponding in amount and maturity to
such Fixed Rate Loan.
SECTION 2.15. Computation of Interest and Fees.
Interest based on the Reference Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap year)
and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first
day but excluding the last day).
SECTION 2.16. Withholding Tax Exemption. At least
five Domestic Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any
Bank, each Bank that is not incorporated under the laws of the
United States or a state thereof agrees that it will deliver to
each of the Company and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Bank is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Bank
which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Agent two additional
copies of such form (or a successor form) on or before the date
that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent
form so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by
the Company or the Agent, in each case certifying that such Bank
is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the
Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
SECTION 2.17. Regulation D Compensation. Each Bank
may require the Company to pay, contemporaneously with each
payment of interest on the Offshore Loans, additional interest on
the related Offshore Loan of such Bank at a rate per annum
determined by such Bank up to but not exceeding the excess of
(i)(A) the applicable IBOR divided by (B) one minus the Euro-
Dollar Reserve Percentage over (ii) the applicable IBOR. Any Bank
wishing to require payment of such additional interest (x) shall
so notify the Company and the Agent, in which case such
additional interest on the Offshore Loans of such Bank shall be
payable to such Bank at the place indicated in such notice with
respect to each Interest Period commencing at least three
Offshore Business Days after the giving of such notice and (y)
shall notify the Company at least five Offshore Business Days
prior to each date on which interest is payable on the Offshore
Loans of the amount then due it under this Section.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect
of any other category of liabilities which includes deposits by
reference to which the interest rate on Offshore Loans is
determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any
Bank to United States residents).
ARTICLE III
CONDITIONS
SECTION 3.1. Effectiveness; Termination of 1994
Agreement. (a) This Agreement shall become effective on the date
that each of the following conditions shall have been satisfied
(or waived in accordance with Section 9.6):
(i) receipt by the Agent of a payoff letter executed
by the "Agent" under the 1994 Agreement indicating the
amount(s) necessary (A) to pay in full as of the Effective
Date all loans, accrued interest and other amounts
outstanding under the 1994 Agreement (except principal of
and accrued interest on outstanding "Money Market Loans"
under the 1994 Agreement made by Banks parties to this
Agreement) and (B) to terminate all commitments thereunder;
(ii) receipt by the Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any party
as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party);
(iii) receipt by the Agent of evidence satisfactory to
the Agent of payment after the date hereof of a cash
dividend by Dart to the Company of not less than
$184,900,000 (the "Dart Dividend");
(iv) receipt by the Agent of evidence satisfactory to
the Agent that the spinoff of Dart more fully described on
Schedule 3.1(iv) hereto shall be effective on terms and
conditions substantially similar to, and in any event, no
less favorable to the Borrower than, the terms and
conditions set forth on Schedule 3.1(iv) (including, without
limitation, an opinion of counsel to Dart, in the form
attached as Exhibit I, addressing the effectiveness of such
transaction and such other matters as the Agent shall
reasonably request);
(v) receipt by the Agent for the account of each Bank
of a duly executed Note dated on or before the Effective
Date complying with the provisions of Section 2.5;
(vi) receipt by the Agent of the opinions of Wachtell,
Lipton, Xxxxx & Xxxx, special counsel to the Company, and of
Xxxx X. Xxxxxxxx, Senior Vice President and General Counsel
for the Company, substantially in the form of Exhibit F, and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may
reasonably request;
(vii) receipt by the Agent of a certificate, dated the
Effective Date, signed by the chief financial officer, the
chief accounting officer, or the treasurer of the Company to
the effect set forth in clauses (c) and (d) of Section 3.2
(without regard to the exception in clause (d) thereof);
(viii) receipt by the Agent of a written consent
reasonably acceptable to the Agent from the requisite banks
party to the 1994 Agreement agreeing to (i) the waiver of
the notice periods for prepayments and termination of the
"Commitments" thereunder as set forth in Sections 2.12 and
2.9 thereof, (ii) the payment of the Dart Dividend, and
(iii) waiver of any defaults resulting solely from the
consummation of the transactions described on Schedule
3.1(iv) hereto; and
(ix) receipt by the Agent of all documents it may
reasonably request prior to the date hereof relating to the
existence of the Company, the corporate authority for and
the validity of this Agreement and the Notes, and any other
matters relevant hereto, all in form and substance
satisfactory to the Agent (and which shall include, without
limitation, good standing certificates and an incumbency
certificate for the Company as well as certified copies of
the Company's certificate of incorporation, bylaws and
resolutions adopted in connection with the transactions
contemplated hereby);
provided, that this Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing
conditions are satisfied or waived in accordance with Section 9.6
on or before July 31, 1996. The Agent shall promptly notify the
Company and the Banks of the Effective Date, and such notice
shall be conclusive and binding on all parties hereto.
(b) The Company and the Banks which are parties to the
1994 Agreement hereby agree that the commitments under the 1994
Agreement shall terminate upon the Effective Date.
(c) Each "Money Market Loan" outstanding under the
1994 Agreement made by a Bank party to this Agreement shall on
and after the Effective Date be deemed to be a Money Market Loan
made hereunder, with a maturity and interest rate as determined
under the 1994 Agreement.
SECTION 3.2. Borrowings. The obligation of any Bank
to make a Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as
required by Section 2.2 or 2.3, as the case may be;
(b) the fact that, immediately after such Borrowing,
the aggregate outstanding principal amount of the Loans will
not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately after such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties
of the Company contained in this Agreement (except the
representations and warranties set forth in Sections 4.4(b),
4.4(c), 4.5(i) and 4.7) and the other Loan Documents shall
be true on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the Company on the date of such Borrowing as to
the facts specified in clauses (b), (c) and (d) of this Section
3.2. An election by the Company to change or continue the type
of interest rate borne by a Loan, pursuant to Section 2.11, is
not a Borrowing subject to the requirements of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.1. Corporate Existence and Power. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of Delaware, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization;
No Contravention. The execution, delivery and performance by the
Company of this Agreement and the other Loan Documents are within
the Company's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of
incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon the Company or result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.
SECTION 4.3. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Company and each
of the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 4.4. Financial Information.
(a) The consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of December 30, 1995 and the
related consolidated statements of income and cash flows for the
fiscal year then ended, reported on by Price Waterhouse and set
forth in the Company's 1995 Form 10-K, a copy of which has been
delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated
financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of
operations and cash flows for the fiscal year then ended.
(b) Except as disclosed in the Company's 1995 Form
10-K, since December 30, 1995, there has been no material adverse
change in the business, financial position, results of operations
or prospects of the company and its Consolidated Subsidiaries,
considered as a whole.
(c) Except as disclosed in the Company's 1995 Form
10-K, the Company and its Consolidated Subsidiaries have no
material Debt or other material liabilities, direct or
contingent, including liabilities for taxes, material commitments
and Guarantees.
SECTION 4.5. Litigation. Except as disclosed in the
Company's 1995 Form 10-K, there is no action, suit or proceeding
pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency
or official in which there is a reasonable possibility of an
adverse decision (i) which could materially adversely affect the
business, consolidated financial position or consolidated results
of operations of the Company and its Consolidated Subsidiaries,
considered as a whole, or (ii) which in any manner draws into
question the validity of this Agreement or any other Loan
Document.
SECTION 4.6. Compliance with ERISA. Each member of
the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and
the Internal Revenue Code with respect to each Plan. No member
of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or made any amendment
to any Plan which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
SECTION 4.7. Environmental Matters. Except as
disclosed in the Company's 1995 Form 10-K, there are no matters
or activities involving the Company or its Consolidated
Subsidiaries in respect of Environmental Laws which the Company
reasonably believes will have a material adverse effect on the
business, financial condition, results of operations or prospects
of the Company and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.8. Taxes. The Company and its Subsidiaries
have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company or any Subsidiary. The
charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or payments in lieu of taxes
are, in the opinion of the Company, adequate.
SECTION 4.9. Subsidiaries. Each of the Company's
Material Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company. The Company
is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.11. Compliance with Laws. The nature and
transaction of the Company's and its Subsidiaries' respective
businesses and operations and the use of their respective
properties and assets, including, but not limited to, any real
estate owned or occupied by the Company or any of its
Subsidiaries, do not and during the term of the Loans shall not,
violate or conflict with in any material respect any applicable
law, statute, ordinance, rule, regulation or order of any kind or
nature, including, without limitation, the provisions of the Fair
Labor Standards Act or any zoning, environmental, land use,
building, noise abatement, occupational health and safety or
other laws, any building permit or any condition, grant, easement
covenant, condition or restriction, whether recorded or not,
except where such conflict or waiver could not reasonably be
expected to have a material adverse effect on the business,
financial condition, results of operations or prospects of the
Company and its Consolidated Subsidiaries, considered as a whole
or on the Company's ability to perform its obligations hereunder
or under the other Loan Documents.
SECTION 4.12. Full Disclosure. All written information
heretofore furnished by the Company to the Agent or any Bank for
purposes of or in connection with this Agreement and any other
Loan Document is, and all such information hereafter furnished by
the Company to the Agent or any Bank will be, true and accurate
in all material respects on the date as of which such information
is stated or certified. The Company has disclosed to the Banks
in writing any and all facts which, in the reasonable judgment of
the Company, materially and adversely affect or may affect (to
the extent the Company can now reasonably foresee), the business,
operations or financial condition of the Company and its
Consolidated Subsidiaries, taken as a whole, or the ability of
the Company to perform its obligations under this Agreement or
any other Loan Document.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Required Banks waive compliance
in writing:
SECTION 5.1. Information. The Company will deliver to
each of the Banks:
(a) as soon as available and in any event within 120
days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income and cash
flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year,
all certified as to fairness of presentation and conformity
with generally accepted accounting principles by Price
Waterhouse or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 60
days after the end of each of the first three quarters of
each fiscal year of the Company, a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of
the end of such quarter and the related consolidated
statements of income and the related consolidated statement
of cash flows for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion
of the Company's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation and conformity with generally accepted
accounting principles by the chief financial officer, the
chief accounting officer or the treasurer of the Company;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer, the
chief accounting officer or the treasurer of the Company (i)
setting forth in reasonable detail the calculations required
to establish whether the Company was in compliance with the
requirements of Sections 5.4, 5.5, 5.6(b), 5.6(c), 5.6(i)
and 5.6(k) on the date of such financial statements and (ii)
stating whether any Default exists on the date of such
certificate and, if any Default then exists., setting forth
the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
report of the firm of independent public accountants which
reported on such statements that provides negative assurance
regarding compliance with Sections 5.4, 5.5, 5.6(b), 5.6(c),
5.6(i) and 5.6(k), insofar as such Sections relate to
accounting matters;
(e) within five days after any officer of the Company
obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer,
the chief accounting officer or the treasurer of the Company
setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) within the respective time frames specified in
clauses (a) and (b) above, reports on Forms 10-K and 10-Q
(or their equivalents), and promptly upon the filing
thereof, copies of all registration statements (other than
the exhibits thereto and any registration statements on Form
S-8 or its equivalent) and reports on Form 8-K (or its
equivalent) which the Company shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy
of the notice of such reportable event given or required to
be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate, impose liability (other than for
premiums under section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such
notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a
copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to make
any payment or contribution to any Plan or Multiemployer
Plan or makes any amendment to any Plan which has resulted
or could result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the chief
financial officer, the chief accounting officer or the
treasurer of the Company setting forth details as to such
occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes
to take; and
(i) from time to time such additional information
regarding the financial position or business of the Company
and its Consolidated Subsidiaries as the Agent, at the
request of any Bank, may reasonably request.
SECTION 5.2. Maintenance of Property; Insurance. (a)
The Company will keep, and will cause each Subsidiary to keep,
all property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted.
(b) The Company will maintain, and will cause each
Subsidiary to maintain (either in the name of the Company or in
such Subsidiary's own name), with financially sound and
responsible insurance companies, insurance on all their
respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are usually
insured against in the same general area by companies of
established repute engaged in the same or similar business; and
will furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the insurance so
carried.
SECTION 5.3. Preservation of Corporate Existence, Etc.
The Company shall, and shall cause each Material Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits,
licenses and franchises in the normal conduct of its business
except where the failure to preserve or maintain such
governmental rights, privileges, qualifications, permits,
licenses and franchises could not reasonably be expected to have
a material adverse effect on the business, financial condition,
results of operations or prospects of the Company and its
Consolidated Subsidiaries, considered as a whole or on the
Company's ability to perform its obligations hereunder or under
the other Loan Documents;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill,
except where the failure to preserve its business organization
and goodwill could not reasonably be expected to have a material
adverse effect on the business, financial condition, results of
operations or prospects of the Company and its Consolidated
Subsidiaries, considered as a whole or on the Company's ability
to perform its obligations hereunder or under the other Loan
Documents; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a material adverse
effect on the business, financial condition, results of
operations or prospects of the Company and its Consolidated
Subsidiaries, considered as a whole.
SECTION 5.4. Debt. (a) Consolidated Debt will at no
time exceed 50% of Total Capitalization.
(b) The Company shall not permit any of its
Consolidated Subsidiaries to incur, assume or suffer to exist any
Debt or to issue any preferred stock, except:
(i) Debt payable to or preferred stock owned by the
Company or a Wholly-Owned Consolidated Subsidiary;
(ii) Debt of any corporation existing at the time such
corporation becomes a Consolidated Subsidiary and not
incurred or assumed in contemplation of such event;
(iii) Debt of any corporation existing at the time
such corporation is merged into a Consolidated Subsidiary
and not incurred or assumed in connection with such event;
(iv) Debt secured by Liens permitted by Section 5.6(f);
and
(v) Debt and preferred stock of the Company's
Subsidiaries in an aggregate principal amount at any time
outstanding, in addition to the Debt of such Subsidiaries
permitted by clauses (b)(i) through (b)(iv) above, not to
exceed the higher of (a) $100,000,000 and (b) 11% of
Consolidated Total Assets, at such time.
SECTION 5.5. Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than $550,000,000.
SECTION 5.6. Negative Pledge. Neither the Company nor
any Consolidated Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
(a) Liens existing on the date hereof securing Debt
outstanding on the date hereof in an aggregate principal
amount not exceeding $25,000,000;
(b) Liens hereafter created or assumed securing
obligations in respect of tax exempt revenue bonds not
exceeding $25,000,000 in aggregate principal amount at any
one time outstanding;
(c) any Lien on any asset securing Debt hereafter
incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such asset, provided that (i)
such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof and (ii) the aggregate
principal amount of Debt secured by all such Liens at any
one time outstanding shall not exceed $50,000,000;
(d) any Lien existing on any asset of any corporation
at the time such corporation becomes a Consolidated
Subsidiary and not created in contemplation of such event;
(e) any Lien on any asset of any corporation existing
at the time such corporation is merged or consolidated with
or into a Consolidated Subsidiary and not created in
contemplation of such event;
(f) any Lien existing on any asset prior to the
acquisition thereof by the Company or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(g) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing clauses of this
Section 5.6, provided that such Debt is not increased and is
not secured by any additional assets other than fixed
improvements constructed on real estate previously subject
to a Lien securing such Debt;
(h) Liens incidental to conduct of its business or the
ownership of its assets which (i) do not secure Debt and
(ii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in
the operation of its business;
(i) Liens arising from capital leases entered into by
the Company or a Subsidiary of the Company as part of a sale
and leaseback transaction; provided that the aggregate
principal amount of Debt secured by such Liens at any time
outstanding shall not exceed $70,000,000;
(j) Liens securing Debt permitted by Section
5.4(b)(i); and
(k) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt in an aggregate
principal amount at any time outstanding not to exceed
$25,000,000.
SECTION 5.7. Consolidations, Mergers and Sales of
Assets. The Company will not (i) consolidate or merge with or
into any other Person, (ii) sell, lease or otherwise transfer all
or substantially all of its assets to any other Person or (iii)
sell or transfer all or any portion of its account receivables
(other than sales of account receivables at any one time having
an aggregate value of not more than $100,000,000).
Notwithstanding the foregoing, the Company may merge or
consolidate with a Subsidiary, provided that the surviving entity
in any such transaction shall assume, by operation of law or in a
writing reasonably satisfactory to the Banks, the obligations
hereunder of all parties to such transaction (it being understood
that the surviving entity in any such transaction shall be
treated as the "Company" for all purposes of this Agreement).
SECTION 5.8. Use of Proceeds. The proceeds of the
Loans made under this Agreement will be used for general
corporate purposes, including (i) payments of the face amount of
commercial paper when due and (ii) acquisitions of the assets or
stock of another Person. None of such proceeds will be used in
violation of any applicable law.
SECTION 5.9. Change in Business. The Company shall
not, and shall not suffer or permit any Subsidiary to, engage in
any material line of business substantially different from those
lines of business carried on by the Company and its Subsidiaries
on the date hereof as set forth in Schedule 5.9 hereto and
natural extensions thereof.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Company shall fail to pay when due any
principal of any Loan, or shall fail to pay within five
Domestic Business Days any interest or commitment or
facility fees payable hereunder;
(b) the Company shall fail to observe or perform any
covenant contained in Section 5.4, 5.5, 5.6 or 5.7;
(c) the Company shall fail to observe or perform any
covenant or agreement contained in this Agreement or any
other Loan Document (other than those covered by clause (a),
(b) or (c) above) for 30 days after notice thereof has been
given to the Company by the Agent at the request of any
Bank;
(d) any representation, warranty, certification or
statement made by the Company in this Agreement, any other
Loan Document or in any certificate, financial statement or
other document delivered pursuant to this Agreement or any
other Loan Document shall prove to have been incorrect in
any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make
any payment in respect of any Material Debt when due or
within any applicable grace period;
(f) any event or condition shall occur which results
in the acceleration of the maturity of any Material Debt or
enables the holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity thereof;
(g) the Company or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize
any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Company or any Material Subsidiary
seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered
against the Company or any Material Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of
$10,000,000 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed
to administer any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of
the ERISA Group to incur a current payment obligation in
excess of $25,000,000;
(j) a single judgment or order for the payment of
money in excess of $25,000,000 or judgments or orders for
the payment of money in excess of $40,000,000 in the
aggregate shall be rendered against the Company or any
Material Subsidiary and such judgment(s) or order(s) shall
continue unsatisfied and unstayed for a period of 45 days;
(k) (i) the Company shall, or any Subsidiaries of the
Company shall, without the written consent of the Agent and
the Required Banks, sell, convey, transfer, or otherwise
dispose of (whether in one transaction or in a series of
transactions), or agree to any of the foregoing, all or
substantially all of the assets of Premark FEG or Wilsonart
International, Inc. (whether now owned or hereafter
acquired) to or in favor of any Person or (ii) Premark FEG
or Wilsonart International, Inc. shall cease to be a
Wholly-Owned Consolidated Subsidiary; and
(l) the occurrence of a Change in Control;
then, and in every such event, the Agent shall (i) if requested
by Banks having at least 51% in aggregate amount of the
Commitments, by notice to the Company terminate the Commitments
and they shall thereupon terminate, and (ii) if requested by
Banks holding Notes evidencing having at least 51% in aggregate
principal amount of the Loans, by notice to the Company declare
the Notes (together with accrued interest thereon) to be, and the
Notes shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Company; provided that in the case
of any of the Events of Default specified in clause (g) or (h)
above with respect to the Company, without any notice to the
Company or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Company.
SECTION 6.2. Notice of Default. The Agent shall give
notice to the Company under Section 6.1(d) promptly upon being
requested to do so by any Bank and shall thereupon notify all the
Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.1. Appointment and Authorization; "Agent".
Each Bank hereby irrevocably (subject to Section 7.9) appoints,
designates and authorizes the Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise
exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement
with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
SECTION 7.2. Delegation of Duties. The Agent may
execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 7.3. Liability of Agent. None of the
Agent-Related Persons shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of
the Company, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any
other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
SECTION 7.4. Reliance by Agent. (a) The Agent shall
be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the Required
Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required
Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 3.1, each Bank that has executed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Bank.
SECTION 7.5. Notice of Default. The Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Agent for
the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this
Agreement, describing such Default and stating that such notice
is a "notice of default". The Agent will notify the Banks of its
receipt of any such notice. The Agent shall take such action
with respect to such Default as may be requested by the Banks in
accordance with Article VI; provided, however, that unless and
until the Agent has received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Banks.
SECTION 7.6. Credit Decision. Each Bank acknowledges
that none of the Agent-Related Persons has made any
representation or warranty to it, and that no act by the Agent
hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any
Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other
condition and credit worthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company
hereunder. Each Bank also represents that it will, independently
and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition
and credit worthiness of the Company. Except for notices,
reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations,
property, financial and other condition or credit worthiness of
the Company which may come into the possession of any of the
Agent-Related Persons.
SECTION 7.7. Indemnification of Agent. Whether or not
the transactions contemplated hereby are consummated, the Banks
shall indemnify upon demand the Agent-Related Persons (to the
extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from
and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each
Bank shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
SECTION 7.8. Agent in Individual Capacity. BofA and
its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The
Banks acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though
it were not the Agent, and the terms "Bank" and "Banks" include
BofA in its individual capacity.
SECTION 7.9. Successor Agent. The Agent may, and at
the request of the Required Banks shall, resign as Agent upon 30
days' notice to the Banks. If the Agent resigns under this
Agreement, the Required Banks shall appoint from among the Banks
a successor agent for the Banks which successor agent shall be
approved by the Company (which shall be required only when both
(i) no Event of Default has occurred and been continuing for
thirty (30) or more days and (ii) the Commitments have not been
terminated in accordance with Section 6 hereof.) If no successor
agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the
Banks and the Company, a successor agent from among the Banks.
Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article VII and Sections 9.3 and 9.4 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the
Required Banks appoint a successor agent as provided for above.
SECTION 7.10. Withholding Tax. (a) If any Bank is a
"foreign corporation, partnership or trust" within the meaning of
the Internal Revenue Code and such Bank claims exemption from, or
a reduction of, U.S. withholding tax under Sections 1441 or 1442
of the Internal Revenue Code, such Bank agrees with and in favor
of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed copies of
Internal Revenue Service Form 1001 before the payment of any
interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Bank, two properly completed and
executed copies of Internal Revenue Service Form 4224 before
the payment of any interest is due in the first taxable year
of such Bank and in each succeeding taxable year of such
Bank during which interest may be paid under this Agreement;
and
(iii) such other form or forms as may be required
under the Internal Revenue Code or other laws of the United
States as a condition to exemption from, or reduction of,
United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Bank claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
Internal Revenue Service Form 1001 and such Bank sells, assigns,
grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such
Bank. To the extent of such percentage amount, the Agent will
treat such Bank's Internal Revenue Service Form 1001 as no longer
valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing Internal Revenue Service Form 4224 with
the Agent sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such
Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Internal Revenue Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. However, if the forms or other documentation required
by subsection (a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Internal Revenue Code, without reduction.
(e) If the Internal Revenue Service or any other
governmental authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Bank (because the
appropriate form was not delivered or was not properly executed,
or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank
shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Agent under this Section, together
with all costs and expenses (including Attorney Costs). The
obligation of the Banks under this Section shall survive the
payment of all Obligations and the resignation or replacement of
the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any CD Loan, Offshore Loan or Money Market
LIBOR Loan:
(a) the Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant market
for such Interest Period, or
(b) in the case of CD Loans or Offshore Loans, Banks
having at least 51% of the aggregate principal amount of the
affected Loans advise the Agent that the Adjusted CD Rate or
the IBOR, as the case may be, as determined by the Agent
will not adequately and fairly reflect the cost to such
Banks of funding their CD Loans or Offshore Loans, as the
case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and
the Banks, whereupon until the Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Banks to make CD Loans or Offshore
Loans, as the case may be, or to convert outstanding Loans into
CD Loans or Offshore Loans, as the case may be, shall be
suspended and (ii) each outstanding CD Loan or Offshore Loan, as
the case may be, shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto.
Unless the Company notifies the Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for
which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead
be made as a Base Rate Borrowing and (ii) if such Fixed Rate
Borrowing is a Money Market LIBOR Borrowing, the Money Market
LIBOR Loans comprising such Borrowing shall bear interest for
each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the
Reference Rate for such day.
SECTION 8.2. Illegality. If, on or after the date of
this Agreement, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof,
or compliance by any Bank (or its Offshore Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank (or its Offshore
Lending Office) to make, maintain or fund its Offshore Loans and
such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and the Company, whereupon
until such Bank notifies the Company and the Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Offshore Loans, or to convert
outstanding Loans into Offshore Loans, shall be suspended.
Before giving any notice to the Agent pursuant to this Section
8.2, such Bank shall designate a different Offshore Lending
Office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each
Offshore Loan of such Bank then outstanding shall be converted to
a Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Offshore Loan if such Bank may
lawfully continue to maintain and fund such Loan to such day or
(b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
SECTION 8.3. Increased Cost and Reduced Return. (a)
If on or after (x) the date hereof, in the case of any Committed
Loan or any obligation to make Committed Loans or (y) the date of
the related Money Market Quote, in the case of any Money Market
Loan, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency (other than any such
request or directive which merely requires compliance with a law,
rule or regulation as in effect and interpreted and administered
on the date hereof):
(i) shall subject any Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its
Fixed Rate Loans, its Note or its obligation to make Fixed
Rate Loans, or shall change the basis of taxation of
payments to any Bank (or its Applicable Lending office) of
the principal of or interest on its Fixed Rate Loans or any
other amounts due under this Agreement in respect of its
Fixed Rate Loans or its obligation to make Fixed Rate Loans
(except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office imposed
by the jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such
requirements imposed by the Board of Governors of the
Federal Reserve System, but excluding (A) with respect to
any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (B) with respect to any
Offshore Loan any such requirement with respect to which
such Bank is entitled to compensation during the relevant
Interest Period under Section 2.17), special deposit,
insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the applicable
interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate
Loans;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any
sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or its Note with respect
thereto, by an amount deemed by such Bank to be material, then
within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall, subject to clause (c) below, pay to
such Bank such additional amount or amounts as will compensate
such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, on or
after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change in any
such law, rule or regulation or any change in the interpretation
or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency (other than any
such request or directive which merely requires compliance with a
law, rule or regulation as in effect and interpreted and
administered on the date hereof), has or would have the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations hereunder to
a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then
from time to time, within 15 days after demand by such Bank (with
a copy to the Agent), the Company shall, subject to clause (c)
below, pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the
Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation
pursuant to this Section 8.3 and will designate a different
Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in
the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this
Section and setting forth in reasonable detail the basis for and
computation of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error.
In determining such amount, such Bank may use any reasonable
averaging and attribution methods. Notwithstanding clauses (a)
and (b) above, the Company shall only be obligated to compensate
any Bank for any amount arising or accruing during (i) any time
or period commencing not more than 90 days prior to the date on
which such Bank notifies the Agent and the Company that it
proposes to demand such compensation and identifies to the Agent
and the Company the statute, regulation or other basis upon which
the claimed compensation is or will be based and (ii) any time or
period during which, because of the retroactive application of
such statute, regulation or other basis, such Bank did not know,
and could not reasonably have been expected to know, that such
amount would arise or accrue.
SECTION 8.4. Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make or maintain
Offshore Loans has been suspended pursuant to Section 8.2 or (ii)
any Bank has demanded compensation under Section 8.3(a) and the
Company shall, by at least five Offshore Business Days' prior
notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless
and until such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such
Bank as (or continued as or converted into) CD Loans or
Offshore Loans, as the case may be, shall instead be Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its CD Loans or Offshore Loans, as
the case may be, has been repaid (or converted to a Base
Rate Loan), all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall be applied
to repay its Base Rate Loans instead.
If such Bank notifies the Company that the circumstances giving
rise to such notice no longer apply, the principal amount of each
such Base Rate Loan shall be converted into a CD Loan or Offshore
Loan, as the case may be, on the first day of the next succeeding
Interest Period applicable to the related CD Loans or Offshore
Loans of the other Banks.
SECTION 8.5. Election of Company to Terminate or
Substitute Banks. If (i) the obligation of any Bank to make
Offshore Loans has been suspended pursuant to Section 8.2, (ii)
any Bank has demanded compensation under Section 2.17 or 8.3,
(iii) any Bank shall become, or a substantial part of the
property of any Bank shall become, the subject of any
receivership, conservatorship, insolvency, reorganization or
similar proceeding (a "Bank Proceeding") or (iv) any Bank shall
default on its commitment to lend hereunder (a "Bank Default"),
the Company
(a) may elect to terminate this Agreement as to such
Bank, and in connection therewith not to borrow any Base
Rate Loan provided for in Section 8.2 or to prepay any Base
Rate Loan made pursuant to Section 8.2 or 8.4, provided that
the Company: (x) notify such Bank through the Agent of such
election at least three Offshore Business Days before any
date fixed for such borrowing or such prepayment, as the
case may be, (y) repay all of such Bank's outstanding Loans,
on at least three Offshore Business Days' notice, not later
than the end of the respective Interest Periods applicable
thereto or as otherwise required by Section 8.2 and (z)
reimburse such Bank for the amount it is entitled to receive
under section 2.14, provided further that in the case of a
Bank Proceeding or a Bank Default, the Company shall not be
required to pay any outstanding Loan to such Bank on any
date prior to the date that the Group of which such Loan
comprises a part is repaid in full; and
(b) shall have the right, with the assistance of the
Agent, to seek a mutually satisfactory substitute bank or
banks (which may be one or more of the Banks) to purchase
the Notes and assume the Commitment of such Bank, and in
such case such Bank shall be entitled to receive, from the
purchasing bank or banks or the Company, the amount it would
have been entitled to receive under Section 2.14 if its
Notes were prepaid rather than purchased.
Upon receipt by the Agent of the notice referred to in
Section 8.5(a) above, the Commitment of such Bank shall terminate
and, if such notice shall relate to a Bank Proceeding, such Bank
shall cease to have any voting rights with respect to any matters
arising hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of the
Company or the Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (y) in the case
of any Bank, at its address, facsimile number or telex number set
forth in its Administrative Questionnaire or (z) in the case of
any party, such other address, facsimile number or telex number
as such party may hereafter specify for the purpose by notice to
the Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such
telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when transmitted to the facsimile
number specified in this Section and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or Article VI
shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the
Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.3. Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as
Agent) within five Business Days after demand for all costs and
expenses incurred by BofA (including in its capacity as Agent) in
connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including reasonable Attorney Costs incurred by BofA (including
in its capacity as Agent) with respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each
Bank within five Domestic Business Days after demand for all
costs and expenses (including reasonable Attorney Costs) incurred
by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an
Event of Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding).
SECTION 9.4. Company Indemnification. Whether or not
the transactions contemplated hereby are consummated, the Company
shall indemnify, defend and hold the Agent-Related Persons, and
each Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements
(including reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or
replacement of the Agent or replacement of any Bank) be imposed
on, incurred by or asserted against any such Indemnified Person
in any way relating to or arising out of this Agreement or any
Loan Document, or the transactions contemplated hereby or
thereby, or any action taken or omitted by any such Indemnified
Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the
Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the
Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities to the extent
resulting from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section 9.4 shall
survive payment of all other Obligations.
SECTION 9.5. Sharing of Set-offs. Each Bank agrees
that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to
any Note held by it which is greater than the proportion received
by any other Bank in respect of the aggregate amount of principal
and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment
shall purchase such participation in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with
respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such
exercise to the payment of Debt of the Company other than its
Debt under the Notes. The Company agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of
a participation in a Note, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation
as fully as if such holder of a participation were a direct
creditor of the Company in the amount of such participation.
SECTION 9.6. Amendments and Waivers. No amendment or
waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by the
Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the
Required Banks (or by the Agent at the written request of the
Required Banks) and the Company and acknowledged by the Agent,
and then any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Banks and
the Company and acknowledged by the Agent, do any of the
following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 6.1);
(b) postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below)
any fees or other amounts payable hereunder or under any other
Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required
for the Banks or any of them to take any action hereunder; or
(e) amend this Section, or Section 9.5, or any
provision herein providing for consent or other action by all
Banks;
and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to
the Required Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document, and (ii) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed by
the parties thereto.
In the event that the effective adoption of any waiver or
amendment hereunder depends upon the validity or enforceability
of the last sentence of Section 8.5, but only in the case of a
Bank Proceeding, the Agent may require an opinion of counsel
satisfactory to it as to such matter as a condition to the
effectiveness of such waiver or amendment.
SECTION 9.7. Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank.
SECTION 9.8. Assignments, Participations, etc. (a)
Any Bank may, with the written consent of the Company (which
shall be required only when both (i) no Event of Default has
occurred and been continuing for thirty (30) or more days and
(ii) the Commitments have not been terminated in accordance with
Section 6 hereof) and the Agent, at any time assign and delegate
to one or more Eligible Assignees (provided that no written
consent of the Company or the Agent shall be required in
connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank or to a
Federal Reserve Bank) (each an "Assignee") all, or any ratable
part of all, of the Loans, the Commitments and the other rights
and obligations of such Bank hereunder, in a minimum amount of
$5,000,000 and incremental amounts of $1,000,000 in excess
thereof; provided, however, that the Company and the Agent may
continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until: (i) written
notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee,
shall have been given to the Company and the Agent by such Bank
and the Assignee; (ii) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and
Acceptance in the form of Exhibit G ("Assignment and Acceptance")
together with any Note or Notes subject to such assignment and
(iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $2,500.
(b) From and after the date that the Agent notifies
the assignor Bank that it has received (and provided its consent
and, to the extent necessary, received the Company's consent,
with respect to) an executed Assignment and Acceptance and
payment of the above-referenced processing fee, (i) 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 and Acceptance, shall have the rights and
obligations of a Bank hereunder and under the other Loan
Documents, and (ii) the assignor Bank shall, to the extent that
all rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents.
(c) Within five Domestic Business Days after its
receipt of notice by the Agent that it has received an executed
Assignment and Acceptance and payment of the processing fee, and
provided that it consents to such assignment in accordance with
clause (a) of this Section 9.8, to the extent so required, the
Company shall execute and deliver to the Agent, new Notes
evidencing such Assignee's assigned Loans and Commitment and, if
the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the
Loans retained by the assignor Bank (such Notes to be in exchange
for, but not in payment of, the Notes held by such Bank).
Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank (the
"originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's obligations
under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to
deal solely and directly with the originating Bank in connection
with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall
transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other
Loan Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as described
in the first proviso to Section 9.6. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 8.3 and 9.4 as though it were also a Bank hereunder,
and if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under
this Agreement.
(e) Notwithstanding any other provision in this
Agreement, any Bank may at any time create a security interest
in, or pledge, all or any portion of its rights under and
interest in this Agreement and the Note held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR section 203.14, and such Federal
Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
(f) If any Reference Bank assigns its Notes to a
Person which is not an Affiliate, the Company may, in
consultation with the Agent and with the consent of the Required
Banks, appoint another bank to act as a Reference Bank hereunder.
(g) No Assignee, Participant or other transferee of
any Bank's rights shall be entitled to receive any greater
payment under Section 8.3 than such Bank would have been entitled
to receive with respect to the rights transferred, unless such
transfer is made with the Company's prior written consent or by
reason of the provisions of Section 8.2 or 8.3 requiring such
Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
SECTION 9.9. Collateral. Each of the Banks represents
to the Agent and each of the other Banks that it in good faith is
not relying upon any "margin stock" (as defined in Regulation U)
as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.10. Governing Law. (a) This agreement and
the notes shall be governed by, and construed in accordance with,
the law of the State of Illinois; provided that the agent and the
banks shall retain all rights arising under federal law.
(b) Any legal action or proceeding with respect to
this agreement or any other loan document may be brought in the
courts of the State or Illinois or of the United States for the
Northern District of Illinois, and by execution and delivery of
this agreement, each of the Company, the Agent and the Banks
consents, for itself and in respect of its property, to the non-
exclusive jurisdiction of those courts. Each of the Company, the
Agent and the Banks irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in
respect of this Agreement or any document related hereto. The
Company, the Agent and the Banks each waive personal service of
any summons, complaint or other process, which may be made by any
other means permitted by Illinois law.
SECTION 9.11. Waiver of Jury Trial. The Company, the
Banks and the Agent each waive their respective rights to a trial
by jury of any claim or cause of action based upon or arising out
of or related to this Agreement, the other Loan Documents, or the
transactions contemplated hereby or thereby, in any action,
proceeding or other litigation of any type brought by any of the
parties against any other party or any Agent-related person,
participant or assignee, whether with respect to contract claims,
tort claims, or otherwise. The Company, the Banks and the Agent
each agree that any such claim or cause of action shall be tried
by a court trial without a jury. Without limiting the foregoing,
the parties further agree that their respective right to a trial
by jury is waived by operation of this Section as to any action,
counterclaim or other proceeding which seeks, in whole or in
part, to challenge the validity or enforceability of this
Agreement or the other Loan Documents or any provision hereof or
thereof. This waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Agreement and the
other Loan Documents.
SECTION 9.12. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the
subject matter hereof.
SECTION 9.13. Confidentiality. The Agent and each of
the Banks agree to keep confidential any financial information
delivered by the Company hereunder which the Company clearly
indicates in writing to be confidential information; provided
that nothing herein shall prevent the Agent or any Bank from
disclosing such information (i) to the Agent or any Bank, (ii) to
any Affiliate of the Agent or any Bank or any actual or potential
purchaser, participant, assignee or transferee of any Bank's
rights or obligations hereunder or under any Note that agrees in
writing to be bound by this Section 9.13, (iii) upon order of any
court or administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having (or claiming)
jurisdiction over such party, (v) which has been publicly
disclosed, (vi) which has been obtained from any Person that is
not a party hereto or an Affiliate of any such party, (vii) in
connection with the exercise of any remedy hereunder, (viii) to
the certified public accountants or legal counsel for any Bank
(on a confidential basis) or (ix) as otherwise expressly
contemplated by this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
PREMARK INTERNATIONAL, INC.
By
Title:
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile number:
Commitment
$24,000,000 BANKERS TRUST CO.
By
Title:
Domestic and Offshore Lending
Offices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Primary Credit Contact:
Attention: Xxxxxxxxx X. Judge
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
Domestic and Offshore Lending
Offices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000/0-00
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contact:
Attention: Xxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 CHEMICAL BANK
By
Title:
Domestic and Offshore Lending
Offices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Primary Credit Contact:
Attention: Xxxxxxx X. Berkshire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 ROYAL BANK OF CANADA
By
Title:
Domestic and Offshore Lending
Offices:
Financial Square
23rd Floor
Attention: Credit Administration
Xxx Xxxx, Xxx Xxxx 00000-0000
Primary Credit Contact:
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 THE FUJI BANK, LIMITED
By
Title:
Domestic and Offshore Lending
Offices:
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contact:
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Mr. Vir Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By
Title:
Domestic and Offshore Lending
Offices:
Xxxxxx Guaranty Trust Company of
New York
Attention: Module 00
Xxx Xxxx, Xxx Xxxx _____
Primary Credit Contact:
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By
Title:
Domestic Lending Office:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Offshore Lending Office:
COMMERZBANK AG, Grand Cayman Branch
c/o Chicago Branch
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contacts:
Attention: Xxxxxxx Xxxxx
Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 CREDIT LYONNAIS CHICAGO BRANCH
By
Title:
Domestic and Offshore Lending
Offices:
000 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contacts:
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$24,000,000 THE NORTHERN TRUST COMPANY
By
Title:
Domestic and Offshore Lending
Offices:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contact:
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Commitment
$34,000,000 BANK OF AMERICA ILLINOIS
By
Title:
Domestic and Offshore Lending
Offices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Primary Credit Contact:
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Primary Operational Contact:
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Total Commitments
$250,000,000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By
Title:
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SCHEDULES AND EXHIBITS
Schedule 3.1(iv) - Dart Spinoff
Schedule 5.9 - Lines of Business
Exhibit A - Note
Exhibit B - Notice of Committed Borrowing
Exhibit C - Money Market Quote Request
Exhibit D - Invitation for Money Market Quotes
Exhibit E - Money Market Quote
Exhibit F - Opinion of Counsel for the Company
Exhibit G - Assignment and Acceptance Agreement
Exhibit H - Purchase/Leaseback Transaction Summary
Exhibit I - Opinion of Counsel for Dart (Spinoff)
SCHEDULE 3.1 (iv)
DART SPIN-OFF
For a description of the spin-off of Dart reference is made to the
Form 10 filed by Tupperware Corporation with the Securities and Exchange
Commission on March 4, 1996, as amended, copies of which have heretofore
been delivered to the Agent and each Bank.
SCHEDULE 5.9
PREMARK LINES OF BUSINESS
FOOD EQUIPMENT GROUP
The Food Equipment Group and its subsidiaries engage in the manufacture and
sale of commercial food preparation, cooking, storage, refrigeration and
cleaning equipment. The Group's operations are international in scope.
Its products are sold to the retail food industry and to the foodservice
industry, and are distributed through company owned operations, distributors,
dealers and licensing arrangements. The Group maintains service networks
for the markets in which it sells.
DECORATIVE PRODUCTS GROUP
Wilsonart, Florida Tile and Hartco make up the Decorative Products Group.
Wilsonart manufactures and sells decorative plastic laminate products used
for numerous interior surfacing applications, including cabinetry,
countertops, vanities, store fixtures, flooring, and furniture. In
addition, Wilsonart manufactures and sells a solid surfacing product,
contact adhesives, metallic surfacings, decorative edge moldings,
and solid surfacing veneer. Its products are used in new construction
and remodeling in residential and commercial markets. The products are sold
through distributors and directly to other equipment manufacturers.
Wilsonart is expanding its distribution and manufacturing outside the U.S.
Florida Tile manufactures glazed ceramic wall and floor tile products for
residential and commercial uses. Tile products are marketed through
company-owned and independent distributors. A small portion of
Florida Tile's sales are exports. Florida Tile also imports foreign-
produced tile products.
Hartco manufactures and distributes prefinished and unfinished flooring, wood
moldings, installation adhesives, and a full line of floor care products for
residential and commercial applications. These products are marketed
to a nationwide network of independent wholesale floor covering distributors,
home improvement store chains, and retail buying groups. A small
portion of Hartco's sales are exports.
CONSUMER PRODUCTS GROUP
The Consumer Products Group consists of West Bend and Precor. West Bend
manufactures and sells small electric appliances such as bread makers,
electric skillets, slow cookers, woks, corn poppers, beverage makers,
electronic timers, and high-quality stainless steel cookware. The small
appliances are sold primarily in the United States and Canada, directly to
mass merchandisers, department stores, hardware stores, warehouse clubs, and
catalog showrooms. The stainless steel cookware is sold to consumers by
independent distributors through dinner parties and by other direct sales
methods, and enjoys substantial international sales. West Bend also
manufactures and sells water purification systems primarily for
residential use.
Precor manufactures physical fitness equipment such as treadmills, stationary
bicycles, and low-impact climbers. Precor equipment is sold primarily
through specialty fitness equipment retail stores and high-end sporting
goods and bicycle stores in the United States and Canada, and is expanding
into international markets. Precor products have been primarily for home
use, but in recent years the company has entered the fitness club market.
EXHIBIT A
NOTE
Chicago, Illinois
May __, 1996
For value received, Premark International, Inc., a
Delaware corporation (the "Company"), promises to pay to the order
of ______________ (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by
the Bank to the Company pursuant to the Credit Agreement referred
to below on the maturity date provided for in the Credit Agreement.
The Company promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided
for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Bank
of America National Trust and Savings Association, ____________,
San Francisco, California.
All loans made by the Bank and all repayments of the
principal thereof shall be recorded by the Bank and, if the Bank so
elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or endorsement
shall not affect the obligations of the Company hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of May __, 1996 among the Company, the banks
listed on the signature pages thereof and Bank of America National
Trust and Savings Association, as Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the mandatory
and optional prepayment hereof and the acceleration of the maturity
hereof.
PREMARK INTERNATIONAL, INC.
By:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount of Principal Notation
Date Loan Repaid Made By
EXHIBIT B
Form of Notice of Committed Borrowing
Date: , 199
To: Bank of America National Trust and Savings Association as
Agent for the Banks parties to the Credit Agreement dated
as of May __, 1996 (as extended, renewed, amended or
restated from time to time, the "Credit Agreement") among
Premark International, Inc., certain Banks which are
signatories thereto and Bank of America National Trust
and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Premark International, Inc. (the "Company"),
refers to the Credit Agreement, the terms defined therein being
used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.2 of the Credit Agreement, of
the Borrowing specified below:
1. The [Offshore][Domestic] Business Day of the proposed
Borrowing is , 19 .
2. The aggregate amount of the proposed Borrowing is $ .
3. The Borrowing is to be comprised of $ of [Base
Rate] [CD Rate] [Offshore Rate] Loans.
4. The duration of the Interest Period for the [CD Rate Loans]
[Offshore Rate Loans] included in the Borrowing shall be [
days] [ months].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the
proposed Borrowing, before and after giving effect thereto and to
the application of the proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article IV of the Credit Agreement are true and
correct as though made on and as of such date (except with
respect to the representations and warranties set forth in
Sections 4.4(b), 4.4(c), 4.5(i) and 4.7);
(b) no Default has occurred and is continuing, or would
result from such proposed Borrowing; and
(c) the proposed Borrowing will not cause the aggregate
principal amount of all outstanding Loans to exceed the
combined Commitments of the Banks.
PREMARK INTERNATIONAL, INC.
By:
Title:
FORM OF NOTICE OF INTEREST RATE ELECTION
Date: , 199
To: Bank of America National Trust and Savings Association as
Agent for the Banks parties to the Credit Agreement dated
as of May __, 1996 (as extended, renewed, amended or
restated from time to time, the "Credit Agreement") among
Premark International, Inc., certain Banks which are
signatories thereto and Bank of America National Trust
and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Premark International, Inc. (the "Company"),
refers to the Credit Agreement, the terms defined therein being
used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.11 of the Credit Agreement, of
the [conversion] [continuation] of the Loans specified herein,
that:
1. The effective date of the [conversion] [continuation] of the
Loans specified herein is , 19 (the
"Conversion/Continuation Date".
2. The aggregate amount of the Loans to be [converted]
[continued] is $ .
3. The Loans are to be [converted into] [continued as] [CD Rate]
[Offshore Rate] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be [
days] [ months].
The undersigned hereby certifies on the date hereof, and as of the
proposed Conversion/Continuation Date, before and after giving
effect thereto and to the application of the proceeds therefrom, no
Default or Event of Default has occurred and is continuing, or
would result from such proposed [conversion] [continuation].
PREMARK INTERNATIONAL, INC.
By:
Title:
EXHIBIT C
Form of Money Market Quote Request
[Date]
To: Bank of America National Trust and Savings Association
(the "Agent")
From: Premark International, Inc.
Re: Credit Agreement dated as of May __, 1996 (as the same
may be amended from time to time, the "Credit Agreement")
among the Company, the Banks listed on the signature
pages thereof and the Agent
We hereby give notice pursuant to Section 2.3 of the
Credit Agreement that we request Money Market Quotes for the
following proposed Money Market Borrowing(s):
Date of Borrowing:
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in
the Credit Agreement.
PREMARK INTERNATIONAL, INC.
By
Title:
* Amount must be $ or a larger multiple of $ .
** Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
EXHIBIT D
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Premark International, Inc.
(the "Company")
Pursuant to Section 2.3 of the Credit Agreement dated as
of May __, 1996 (as the same may be amended from time to time, the
"Credit Agreement) among the Company, the Banks parties thereto and
the undersigned, as Agent, we are pleased on behalf of the Company
to invite you to submit Money Market Quotes to the Company for the
following proposed Money Market Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.] Capitalized terms used herein without
definition have the meanings set forth in the Credit Agreement.
Please respond to this invitation by no later than [12:00
p.m.] [10:00 a.m.] (New York City time) on [date].
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By
Authorized Officer
EXHIBIT E
Form of Money Market Quote
To: Bank of America National Trust and
Savings Association, as Agent
Re: Money Market Quote to
Premark International, Inc.
(the "Company")
In response to your invitation on behalf of the Company
dated , 19 , we hereby make the following Money Market
Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: *
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following interests Periods and at
the following rates:
Principal Interest Money Market
Amount ** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market
Loans for which the above offers may be accepted shall not
exceed $ .]**
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the
sum of the individual offers exceed the amount the Bank is willing
to lend. Bids must be made for $5,000,000 or a larger multiple of
$1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement dated as of May __, 1996 (as the same
may be amended from time to time, the "Credit Agreement) among the
Company, the Banks listed on the signature pages thereof and
yourselves, as Agent, irrevocably obligates us to make the Money
Market Loan(s) for which any offer(s) are accepted, in whole or in
part. Capitalized terms used herein without definition have the
meanings set forth in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
*** Not less than one month or not less than 7 days, as specified
in the related Invitation. No more than five bids are permitted
for each Interest Period.
**** Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify percentage
(to the nearest 1/10,000th of 1%) and specify whether "PLUS" or
"MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th
of 1%).
EXHIBIT F
OPINION OF
COUNSEL FOR THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Bank of America National Trust
and Savings Association, as Agent
[Address]
Dear Sirs:
We have acted as counsel for Premark International, Inc.
(the "Company") in connection with the Credit Agreement (the
"Credit Agreement") dated as of May __, 1996 among the Company, the
banks listed on the signature pages thereof and Bank of America
National Trust and Savings Bank, as Agent. This opinion is being
rendered to you pursuant to Section 3.1(a)(vi) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein
as therein defined.
We have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact
and law as we have deemed necessary or advisable for purposes of
this opinion.
Upon the basis of the foregoing, we are of the opinion
that:
1. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
2. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes are within the
Company's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of,
or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation
or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the
Company or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding
agreement of the Company and the Notes constitute valid and binding
obligations of the Company, in each case enforceable in accordance
with their respective terms except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
4. Except as disclosed in the Company's 1995 Form 10-K,
there is no action, suit or proceeding pending against, or to our
knowledge threatened against or affecting, the Company or any of
its Subsidiaries before any court or arbitrator or any governmental
body, agency or official, in which there is a reasonable
possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or
consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole or which in any
manner draws into question the validity of the Credit Agreement or
the Notes.
5. Each of the Company's Material Subsidiaries is a
corporation validly existing and in good standing under the laws of
its jurisdiction of incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
We are members of the Bar of the State of Illinois and
the foregoing opinion is limited to the laws of the State of
Illinois, the federal laws of the United States of America and the
General Corporation Law of the State of Delaware.
Very truly yours,
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE AGREEMENT
AGREEMENT dated as of , 19 among [ASSIGNOR]
(the "Assignor"), [ASSIGNEE] (the "Assignee"), PREMARK
INTERNATIONAL, INC. (the "Company") and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Acceptance Agreement (the
"Agreement") relates to the Credit Agreement dated as of May __,
1996 (as the same may be amended from time to time, the "Credit
Agreement") among the Company, the Assignor and the other Banks
party thereto, as Banks, and the Agent;
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans to the Company in an
aggregate principal amount at any time outstanding not to
exceed $ ;
WHEREAS, Committed Loans made to the Company by the
Assignor under the Credit Agreement in the aggregate principal
amount of $ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee
all of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Commitment thereunder in an amount
equal to $ (the "Assigned Amount"), together with a
corresponding portion of its outstanding Committed Loans, and the
Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as
follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings set
forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and
sells to the Assignee all of the rights of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and
assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Company and the Agent and
the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a Commitment
in an amount equal to the Assigned Amount, and (ii) the Commitment
of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been assumed
by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the Assignee
shall pay to the Assignor on the date hereof in Federal funds an
amount equal to $ . It is understood that facility
fees in respect of the Assigned Amount accrued to the date hereof
are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee.
Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for
the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other
party.
[SECTION 4. Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the Company and the
Agent pursuant to Section 9.8 of the Credit Agreement. The
execution of this Agreement by the Company and the Agent is
evidence of this consent. Pursuant to Section 9.8 the Company
agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and acceptance provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes
no representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition,
or statements of the Company, or the validity and enforceability of
the obligations of the Company in respect of the Credit Agreement
or any Note. The Assignee acknowledges that it has, independently
and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal
of the business, affairs and financial condition of the Company.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Illinois.
SECTION 7. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[PREMARK INTERNATIONAL, INC.
By
Title:]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By
Title:
EXHIBIT H
PURCHASE/LEASEBACK TRANSACTION SUMMARY
In December 1991, Premark International, Inc. ("Premark"),
through two of its subsidiaries, entered into a purchase/leaseback
transaction with a leasing company (the "seller"). Premark
purchased certain computer equipment totalling $35.85 million and
immediately leased the equipment back to the seller for 66 months.
At the same time, a majority of the lease receivables were sold on
a non-recourse basis for $30.5 million cash.
When purchased, the computer equipment was under lease to
third parties by the seller. The equipment and the user leases are
subject to existing liens in favor of the seller's lenders. The
liens may not be removed or subordinated to Premark's interest.
Additional liens may be placed upon the computer equipment which
may be subject to the lease. Premark has no obligation in respect
of the seller's financing.
EXHIBIT I
None.
WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT ("Waiver and
Amendment"), dated as of June 6, 1996, is entered into by and among PREMARK
INTERNATIONAL, INC. (the "Company"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for itself and the Banks (the "Agent"), and the
several financial institutions party to the Credit Agreement (collectively,
the "Banks").
RECITALS
A. The Company, the Banks and the Agent are parties to a Credit
Agreement, dated as of May 17, 1996 (as amended, modified or supplemented, the
"Credit Agreement"; capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement) pursuant to which the
Agent and the Banks have agreed, subject to the satisfaction or waiver of
certain conditions to effectiveness contained therein, to extend certain
credit facilities to the Company.
B. The Company has requested (i) that the merger of Premark FEG with
and into the Company which became effective May 23, 1996 (the "Merger") be
consented to by the Banks and that waivers be given by the Banks with respect
thereto and (ii) the Credit Agreement be amended to permit, subject to certain
conditions, the Company or one or more of its Wholly-Owned Consolidated
Subsidiaries to transfer from time to time the assets which respectively
comprise the Company's "Food Equipment Group" and its "Decorative Products
Group" (each as described in the Company's 1995 Form 10-K) to the Company or
to another of the Company's Wholly-Owned Consolidated Subsidiaries (each such
transfer, "Permitted Transfer").
C. The Banks are willing (i) to consent to the Merger and give
certain waivers with respect thereto and (ii) to amend the Credit Agreement to
permit, subject to certain conditions, the Permitted Transfers.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Merger Event and Waiver.
(a) Subject to and upon the terms and conditions hereof
(including, without limitation, the occurrence of the Amendment Effective
Date), the Banks hereby consent to the occurrence of the Merger and waive any
violation of the provisions of Section 6.1(k) of the Credit Agreement
resulting therefrom.
(b) Subject to the consent and waiver in clause (a) above,
nothing contained herein shall be deemed a waiver of (or otherwise affect the
Agent's or the Banks' ability to enforce) any Default or Event of Default,
including without limitation (i) any Default or Event of Default as may now or
hereafter exist and arise from or otherwise be related to the Merger
(including without limitation any cross-default arising under the Credit
Agreement by virtue of any matters resulting from the Merger), and (ii) any
Default or Event of Default arising at any time after the Amendment Effective
Date and which is the same as or similar to the Merger, to the extent the same
is prohibited under the Credit Agreement, as amended hereby.
2. Amendments to Credit Agreement.
(a) The following definitions are hereby added (and are to be
inserted in alphabetical order) to Section 1.1 of the Credit Agreement:
"'FEG Assets' shall mean the assets which comprise the Company's
'Food Equipment Group', as the same are described in the Company's 1995
Form 10-K, and including, without limitation, any assets hereafter
acquired by the 'Food Equipment Group' or any successor thereto."
"'Wilsonart Assets' shall mean the assets which comprise the
portion of the Company's 'Decorative Products Group', as the same are
described in the Company's 1995 Form 10-K, owned, operated, sold,
produced or manufactured by Wilsonart International, Inc. ('Wilsonart')
and including, without limitation, any assets hereafter acquired by
Wilsonart, its Subsidiaries and any successors thereto."
(b) Section 6.1(k) of the Credit Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:
"(k) the Company shall, or any Subsidiaries of the Company shall,
without the written consent of the Agent and the Required Banks, sell,
convey, transfer, or otherwise dispose of (whether in one transaction or
in a series of transactions and whether by way of direct sale,
conveyance, transfer, disposition or by merger or consolidation), or
agree to any of the foregoing, all or substantially all of
(A) the assets which comprise the FEG Assets or
(B) the assets which comprise the Wilsonart Assets
in each case (whether now owned or hereafter acquired) to or in favor of
any Person other than (1) the Company or (2) a Wholly-Owned Consolidated
Subsidiary; and"
3. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Banks as follows:
(a) Subject to the consent and waiver of the Banks in Section
1(a) above, no Default or Event of Default has occurred and is continuing or
would be in existence if the Credit Agreement were effective as of the date
hereof.
(b) Subject to the consent and waiver of the Banks in Section
1(a) above, all representations and warranties of the Company contained in the
Credit Agreement are true and correct and all of the conditions to
effectiveness thereof set forth in Section 3.1 of the Credit Agreement have
been satisfied.
(c) The Company is entering into this Waiver and Amendment on
the basis of its own investigation and for its own reasons, without reliance
upon the Agent and the Banks or any other Person.
4. Amendment Effective Date. This Waiver and Amendment will become
effective as of June 6, 1996 (the "Amendment Effective Date"), provided that
each of the following conditions precedent is satisfied on or before June 30,
1996:
(a) the Agent has received from the Company and each of the
Banks a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Waiver and Amendment;
(b) all representations and warranties contained herein are true
and correct as of the date the condition specified under clause (a) above is
satisfied.
5. Reservation of Rights. The Company acknowledges and agrees that
neither the Agent's nor the Banks' forbearance in exercising their rights and
remedies in connection with the Merger, nor the execution and delivery by the
Agent and the Banks of this Waiver and Amendment, shall be deemed (i) to
create a course of dealing or otherwise obligate the Agent or the Banks to
forbear or execute similar waivers under the same or similar circumstances in
the future, or (ii) to waive, relinquish or impair any right of the Agent or
the Banks to receive any indemnity or similar payment from any Person or
entity as a result of any matter arising from or relating to the Merger.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Waiver and Amendment. This
Waiver and Amendment shall be deemed incorporated into, and a part of, the
Credit Agreement.
(b) This Waiver and Amendment shall be binding upon and inure to
the benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with
this Waiver and Amendment.
(c) This Waiver and Amendment shall be governed by and construed
in accordance with the law of the State of Illinois.
(d) This Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Lender or the Company shall bind such Lender or the
Company, respectively, with the same force and effect as the delivery of a
hard copy original. Any failure by the Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Agent.
(e) This Waiver and Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This Waiver and
Amendment supersedes all prior drafts and communications with respect
thereto. This Waiver and Amendment may not be amended except in accordance
with theprovisions of Section 9.6 of the Credit Agreement.
(f) If any term or provision of this Waiver and Amendment shall
be deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this Waiver
and Amendment or the Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand, for all costs and expenses (including reasonable Attorney Costs)
incurred in connection with the development, preparation, negotiation,
execution and delivery of this Waiver and Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver and Amendment as of the date first above written.
PREMARK INTERNATIONAL, INC.
By:__________________________
Title:_______________________
[Two additional signature pages follow]
BANKERS TRUST CO.
By
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
CHEMICAL BANK
By
Title:
ROYAL BANK OF CANADA
By
Title:
THE FUJI BANK, LIMITED
By
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
Title:
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH
By
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
Title:
THE NORTHERN TRUST COMPANY
By
Title:
BANK OF AMERICA ILLINOIS
By
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By
Title:
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment"), dated as of
October 3, 1997, is entered into by and among PREMARK INTERNATIONAL, INC. (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
agent for itself and the Banks (the "Agent"), and the several financial
institutions party to the Credit Agreement (collectively, the "Banks").
RECITALS
A. The Company, the Banks and the Agent are parties to a Credit
Agreement, dated as of May 17, 1996 (as amended, modified or supplemented, the
"Credit Agreement"; capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement) pursuant to which the
Agent and the Banks have agreed, subject to the satisfaction or waiver of
certain conditions to effectiveness contained therein, to extend certain
credit facilities to the Company.
B. The Company has requested an extension of the Termination Date to
October 3, 2002 and the Banks are willing to consent to such extension.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment.
(a) Subject to and upon the terms and conditions hereof
(including, without limitation, the occurrence of the Amendment Effective
Date), the Banks hereby consent to the amendment of the definition of
"Termination Date" in Section 1.1 of the Credit Agreement to read as follows:
"Termination Date" means October 3, 2002.
2. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) All representations and warranties of the Company contained
in Article IV of the Credit Agreement are true and correct as of the date
hereof, except to the extent the same expressly relate to an earlier date.
References to the Company's 1995 Form 10-K are understood, for purposes of
this provision, to be references to the Company's 1996 Form 10-K.
(c) The Company is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Agent
and the Banks or any other Person.
3. Amendment Effective Date. This Amendment will become effective as
of October 3, 1997 (the "Amendment Effective Date"), provided on or before
October 3, 1997 the Agent has received from the Company and each of the Banks
a duly executed original (or, if elected by the Agent, an executed facsimile
copy) of this Amendment.
4. Reservation of Rights. The Company acknowledges and agrees that
the execution and delivery by the Agent and the Banks of this Amendment shall
not be deemed (i) to create a course of dealing or otherwise obligate the
Agent or the Banks to execute similar amendments under the same or similar
circumstances in the future, or (ii) to waive, relinquish or impair any right
of the Agent or the Banks under the Credit Agreement.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of Illinois.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Lender or the Company shall bind such Lender or the
Company, respectively, with the same force and effect as the delivery of a
hard copy original. Any failure by the Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Agent.
(e) This Amendment, together with the Credit Agreement, contains
the entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 9.6 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
PREMARK INTERNATIONAL, INC.
By
Title:
[Two additional signature pages follow]
BANKERS TRUST CO.
By
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
THE CHASE MANHATTAN BANK
By
Title:
ROYAL BANK OF CANADA
By
Title:
THE FUJI BANK, LIMITED
By
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
Title:
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH
By
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By
Title:
THE NORTHERN TRUST COMPANY
By
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (as successor to BANK OF
AMERICA ILLINOIS)
By
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By
Title:
ACKNOWLEDGMENT AND CONSENT TO CREDIT AGREEMENT
THIS ACKNOWLEDGMENT AND CONSENT TO CREDIT AGREEMENT (this
"acknowledgment and
Consent"), dated as of October 3, 1997, is entered into by and among PREMARK
INTERNATIONAL, INC. (the "Company"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for itself and the Banks (the "Agent"), and the
several financial institutions party to the Credit Agreement (collectively,
the "Banks").
RECITALS
A.The Company, the Banks and the Agent are parties to a Credit Agreement,
dated as of May 17, 1996 (as amended, modified or supplemented, the "Credit
Agreement"; capitalized terms used herein without definition shall have the
meanings set forth in the Credit Agreement) pursuant to which the Agent and
the Banks have agreed, subject to the satisfaction or waiver of certain
conditions to the effectiveness contained therein, to extend certain credit
facilities to the Company.
B. In connection with the Second Amendment to the Credit Agreement dated as
of October 3, 1997 (the "Second Amendment") pursuant to which the Company
requested an extension of the Termination Date to October 3, 2002, Credit
Lyonnaise Chicago Branch has indicated that its Commitment was to terminate
while Banks were willing to consent to such extension.
C. The undersigned Banks have agreed, consistent with commitment letters
previously delivered to the Agent, that, in the case of Bank of America
National Trust and Savings Association, its Commitment will be $34,000,000,
and, in the case of the other undersigned Banks, that their respective
Commitments will each be $27,000,000, respectively, in order to replace the
Commitments of the terminating institution and that they will ratify the
Second Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Acknowledgment and Consent.
(a) Subject to and upon the terms and conditions hereof, the undersigned Banks
(other than Bank of America National Trust and Savings Association) hereby
acknowledge and agree that their respective Commitments will each be
$27,000,000 and Bank of America National Trust and Savings Association hereby
acknowledges and agrees that its Commitment will be $34,000,000, in all cases
effective as of the date first written above.
(b) Each of the Company and the undersigned Banks ratifies in all respect the
Second Amendment.
2. Reservation of Rights. The Company acknowledges and agrees that the
execution and delivery by the Agent and the undersigned Banks of this
Acknowledgment and Consent shall not be deemed (i) to create a course of
dealing or otherwise obligate the Agent or the undersigned Banks to execute
similar acknowledgments and consent under the same or similar circumstances in
the future, or (ii) to waive, relinquish or impair any right of the Agent or
the undersigned Banks under the Credit Agreement.
3. Miscellaneous.
(a) Except as herein expressly acknowledged and consented, all terms,
covenants and provision of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as acknowledged and consent to by
this Acknowledgment and Consent. This Acknowledgment and Consent shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Acknowledgment and Consent shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Acknowledgment and Consent.
(c) This Acknowledgment and Consent shall be governed by and construed in
accordance with the law of the State of Illinois.
(d) This acknowledgment and Consent may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of an undersigned Bank or the Company shall bind such
undersigned Bank or the Company, respectively, with the same force and effect
as the delivery of a hard copy original. Any failure by the Agent to receive
the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of
such document of the party whose hard copy page was not received by the Agent.
(e) This Acknowledgment and Consent, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This Acknowledgment
and Consent supersedes all prior drafts and communications with respect
thereto. This Acknowledgment and Consent may not be amended except in
accordance with the provisions of Section 9.6 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Acknowledgment and Consent as of the date first above written.
PREMARK INTERNATIONAL, INC.
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
BANKERS TRUST CO.
By:
Title
THE CHASE MANHATTAN BANK
By:
Title:
ROYAL BANK OF CANADA
By:
Title:
THE FUJI BANK, LIMITED
By:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:
Title:
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (as successor to
BANK
OF AMERICA ILLINOIS)
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
By:
Title:
EXHIBIT 10.3
Premark International, Inc. Supplemental Plan
(As Amended and Restated Effective April 1, 1997)
Contents
Section
Article I. Establishment and Construction
1.1 Establishment and Amendment
1.2 Purpose
Article II. Definitions, Construction, and Interpretation
2.1 Definitions
2.2 Gender and Number
2.3 Employment Rights
2.4 Severability
2.5 Applicable Law
Article III. Benefit Limitations Relating To Defined Contribution Plans
3.1 Participation
3.2 Benefit Amount
3.3 Earnings
3.4 Establishment of Accounts
3.5 Benefit Payment or Commencement
3.6 Form of Distribution
Article IV. Benefit Limitations Relating to Defined Benefit Plans
4.1 Participation
4.2 Benefit Amount
4.3 Establishment of Accounts
4.4 Benefit Payment or Commencement
4.5 Form of Distribution
Article V. Change of Control
5.1 Participation
5.2 Benefit Amount
5.3 Establishment of Accounts
5.4 Benefit Payment
5.5 Form of Distribution
Article VI. General Provisions
6.1 Funding
6.2 Vesting
6.3 Form of Distribution
6.4 Death Benefits
6.5 Administration
6.6 Claims and Appeals
6.7 Expenses
6.8 Indemnification and Exculpation
6.9 Interests Not Transferable
6.10 Action by the Corporation or Affiliates
6.11 Effect on Other Benefit Plans
6.12 Tax Liability
Article VII. Amendment and Termination
7.1 Amendment and Termination
Article I. Establishment and Construction
1.1 Establishment and Amendment
Premark International, Inc. (the "Corporation") presently maintains an
unfunded deferred compensation plan, known as "The Premark International,
Inc. Supplemental Plan", which provides benefits to certain eligible employees
of the Corporation and its Affiliates. This plan was established effective as
of September 28, 1986, and was last amended and restated effective as of
September 1, 1994. Said plan is hereby further amended and restated as set
forth herein effective as of April 1, 1997.
1.2 Purpose
The Corporation and its Affiliates sponsor several defined benefit plans and
defined contribution plans for the benefit of their U.S. employees and their
beneficiaries. These plans cover a variety of employee groups and are
intended to operate as "qualified plans" as that term is defined under the
Code.
These qualified plans are subject to limitations under section 415 of the
Code that sometimes result in the diminution of allocations and benefits
payable on behalf of certain employees. This Plan is established to offset
this diminution for eligible employees. These benefits are intended to
constitute an "unfunded excess benefit plan" under section 3(36) of ERISA.
These qualified plans also contain certain other restrictions, including
restrictions under sections 401(a)(17), 401(k), and 402(g), that sometimes
result in a diminution of benefits available to certain highly compensated
employees. This Plan is also established to offset this diminution, in part
and to the extent provided herein, for eligible employees. These benefits
are intended as constituting an unfunded deferred compensation plan for a
select group of highly compensated employees, as described in sections 201(2),
301(a)(3), and 401(a)(1) of ERISA.
Article II. Definitions, Construction, and Interpretation
2.1 Definitions
The following terms shall have the meaning stated below unless the context
clearly indicates otherwise.
(a) "Administrator(s)" means such Employee, Employees, or committee of
Employees as may from time to time be designated by the Board of Directors of
the Corporation ("Board") or a committee of the Board to have the authority
and control over some specified portion of the administration and management
of the Plan.
(b)"Affiliate" means--
(1) any corporation other than an Employer, i.e., either a subsidiary
corporation or an affiliated or associated corporation of an Employer, which
together with an Employer is a member of a "controlled group" of corporations
(as defined in section 414(b) of the Code);
(2) any organization which together with an Employer is under "common
control" (as defined in section 414(c) of the Code);
(3) any organization which together with an Employer is an "affiliated
service group" (as defined in section 414(m) of the Code); or
(4) any other entity required to be aggregated with an Employer pursuant
to regulations under section 414(o) of the Code.
(c) "Change of Control" effective November 6, 1996, means the following
events:
(1) the acquisition, other than from the Corporation, by any individual,
entity, or group (within the meaning of section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of securities representing twenty (20) percent or more of the
combined voting power of the Corporation's securities entitled to vote in the
election of directors; provided, however, that any acquisition by the
Corporation or any of its subsidiaries, or by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any of its
subsidiaries, or any merger or acquisition following which more than sixty
(60) percent of the combined voting power of the securities of the resulting
parent corporation is held by the holders of the combined voting power of the
Corporation's securities in substantially the same proportion as their
ownership immediately prior to such transaction and the Incumbent Board still
constitutes at least a majority of the Board, shall not constitute a Change
of Control; or
(2) individuals who, as of November 6, 1996, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board, provided that any individual becoming a director subsequent to
November 6, 1996, whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest (as such terms are
used in Rule 14a-11 of regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents; or
(3) approval by the shareholders of the Corporation of--
(A) a complete liquidation or dissolution of the Corporation, or
(B) the sale or other disposition of all or substantially all of the
assets of the Corporation, or
(C) a reorganization, merger, or consolidation of the Corporation;
(1)provided that such transaction shall not constitute a Change of
Control if, following such transaction, the holders of the combined voting
power of the Corporation's securities own more than sixty (60) percent of the
combined voting power of the securities of the Corporation which acquires the
assets in (B) above or the parent Corporation which results from the
reorganization, merger or consolidation in (C) above and the Incumbent Board
still constitutes at least a majority of such entities; or
(D) the sale or other disposition, in response to a pending or
threatened Change of Control, of a majority of the voting stock or all or
substantially all of the assets of the Corporation comprising the decorative
laminate business or the food equipment business, if the sales or operating
income of such business constituted at least twenty (20) percent of the
Corporation's consolidated sales or operating income during the most recently
completed fiscal year. The Board shall determine, in its sole discretion,
whether the sale or other disposition of such businesses is in response to a
pending or threatened Change of Control. If the Board determines that such
transaction is not in response to a pending or threatened Change of Control,
the Participant shall have no right to the benefits resulting from a Change
of Control; provided, however, that the Board shall review the circumstances of
such transaction, including management's role in initiating the transaction,
its effect on shareholder value, and its effect on the Participant's
responsibilities and terms of employment, and shall determine, in its sole
discretion, whether all or any part of the benefits resulting from a Change
of Control shall be awarded to the Participant.
(d) "Code" means the Internal Revenue Code of 1986, as it may be amended from
time to time.
(e) "Defined Benefit Plan" means any of the following qualified defined
benefit plans on account of which a Participant becomes eligible under this
Plan:
(1) the Premark International, Inc. Base Retirement Plan, or
(2) the Retirement Plan for Salaried Employees of the PMI Food Equipment
Group.
(f) "Defined Contribution Plan" means the Premark International, Inc.
Retirement Savings Plan.
(g) "Employer" means the Corporation and its Affiliates the employees of
which participate in any Defined Benefit Plan or Defined Contribution Plan.
(h) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
(i) "Highly Compensated Employee" means an employee of the Employer whom the
Administrator(s) determines to be a highly compensated employee within the
meaning of Code section 414(q).
(j) "Participant" means a Highly Compensated Employee or former Highly
Compensated Employee or Level I Employee, who meets the participation
requirements set forth in section 3.1, 4.1, or 5.1 (whichever is applicable)
of this Plan.
(k) "Retirement" means a Participant's termination of employment with the
Corporation and Affiliates on or after the date the Participant either--
(1) has become eligible to receive an immediate retirement benefit under
the Defined Benefit Plan or, in the event the Participant is not covered by
the Defined Benefit Plan, the Participant either has attained (A) age
fifty-five (55) with ten (10) years of service or (B) age sixty-five (65), or
(2) has immediate coverage under a retiree medical plan maintained by the
Employer.
Unless the context clearly indicates otherwise, terms not defined in this
section shall have the meaning specified in the applicable Defined Benefit
Plan or Defined Contribution Plan (if defined therein). Where the defined
meaning is intended, the term is capitalized.
2.2 Gender and Number
Unless the context clearly requires otherwise, masculine pronouns whenever
used shall include the feminine and neuter pronouns, and the singular shall
include the plural.
2.3 Employment Rights
Establishment of the Plan shall not be construed to give any Participant the
right to be retained by the Employer or to receive any benefits not
specifically provided by the Plan.
2.4 Severability
If a provision of this Plan shall be held illegal or invalid, the illegality
or invalidity shall not affect the remaining parts of the Plan and the Plan
shall be construed and enforced as if the illegal or invalid provision had
not been included in this Plan. The Corporation shall have the privilege and
opportunity to correct and remedy such questions of illegality or invalidity
by amendment as provided in the Plan.
2.5 Applicable Law
(a) This Plan, to the extent considered an "unfunded supplemental executive
retirement plan", is fully exempt from Titles II, III, and IV of ERISA. The
Plan shall be governed and construed in accordance with Title I of ERISA.
(b) In addition, this Plan, to the extent considered an "unfunded excess
benefit plan", is fully exempt from the provisions of ERISA pursuant to
section 4(B)(5) thereof.
(c) To the extent not governed by ERISA, the Plan shall be governed by and
construed according to the laws of the State of Illinois.
Article III. Benefit Limitations Relating to Defined Contribution Plans
3.1 Participation
A person who is a Highly Compensated Employee or who, on or after January 1,
1995, is a Level I Employee (who is designated as such by the
Administrator(s)), and who is a participant in a Defined Contribution Plan
shall be an eligible Participant under this Article for a plan year on the
first date upon which employee contributions, employer contributions,
forfeitures, compensation, or allocations under the applicable Defined
Contribution Plan are restricted for that plan year as a result of the
provisions of Code sections 415, 401(a)(17), and/or 402(g), or any successor
provisions thereto.
3.2 Benefit Amount
For each plan year of the Defined Contribution Plan, a Participant shall be
credited with a benefit equal to the sum of the amounts in (a) and (b) below--
(a) Employer-Provided Benefits. The amount of Employer-Provided Benefits
shall equal the sum of:
(1) the excess of (A) the amount which would have been allocated for the
plan year, but for the limitations described in section 3.1, over (B) the
amount allocated for the plan year, to the Participant's Defined Contribution
Plan account balance, without regard to the rate of contribution elected by
the Participant under the Defined Contribution Plan; and,
(2) provided that the Participant has made a timely submission to the
Administrator of an election to make before-tax deferrals for the plan year
to this Plan, the excess of (A) the amount which would have been allocated for
the plan year, but for the limitations described in section 3.1, over (B) the
amount allocated for the plan year, to the Participant's Defined Contribution
Plan account, where both (A) and (B) are based on the rate of contribution
specified in a timely election by the Participant under this Plan and the
Defined Contribution Plan, as in effect on January 1 of such plan year,
subject to the percentage of pay restriction on elective deferrals of Highly
Compensated Employees imposed by the Corporation under the Defined
Contribution Plan for such plan year.
For purposes of this subsection, contributions made pursuant to a salary
reduction agreement shall be deemed a Participant contribution and not an
Employer-provided benefit.
(b) Salary Reduction Contributions. Upon timely submission to the
Administrator(s) of an election to participate, a Participant shall be
eligible to make before-tax deferrals to this Plan equal to the amount of
contributions that would have been made to the Defined Contribution Plan
pursuant to a salary reduction agreement but for the limitations described in
section 3.1, and subject to the percentage of pay restriction on elective
deferrals of Highly Compensated Employees imposed by the Corporation in order
to pass the actual deferral percentage and actual compensation percentage
discrimination tests of Code sections 401(k) and 401(m). Such amount shall
be based on the rate of salary reductions elected by the Participant under the
Defined Contribution Plan as in effect on January 1 of each year for which an
election is effective, subject to the restrictions imposed by the Corporation
as mentioned above.
(C) Election to Participate. To be effective for a plan year, an election to
participate must be communicated in writing to the Administrator(s) prior to
January 1st of such year. Once an election is made, it shall continue in
effect unless and until the Participant notifies the Administrator(s) in
writing of his intention to change or cancel his election, which cancellation
or change shall not be effective for purposes of this Plan until the first
day of the calendar year following the year in which the Administrator(s)
receives such notification.
(1) For a person first becoming an eligible Participant under this
Article 3.2(b), such election to participate must be communicated in writing
to the Administrator(s) no later than thirty (30) days after the date he is
notified of his eligibility to make such deferrals, in which event--
(A) the election shall be effective for the first pay cycle occurring
after the Administrator(s) receives such written election, and
(B) deferrals pursuant to such election shall be determined with
reference to contributions to the Defined Contribution Plan beginning with
said pay cycle.
(2) If an election to participate is not timely filed, the eligible
Participant may elect to participate at the beginning of any subsequent
calendar year by submitting an election to the Administrator(s) prior to the
beginning of any subsequent calendar year.
(d) Contribution Rate Changes. Notwithstanding the fact that a Participant
changes the rate of contribution or ceases contributions to the Defined
Contribution Plan during a calendar year, the benefit amount of
Employer-Provided Benefits and Salary Reduction Contributions shall continue
for the balance of the calendar year at the rate in effect at the beginning
of the calendar year as if no change had been made.
3.3 Earnings
The benefit amount for each Participant pursuant to section 3.2 shall be
adjusted and credited to each Participant's account at the end of each
calendar year quarter ("Quarter") to reflect an assumed rate of earnings, as
follows:
(a) The rate of earnings communicated to the participants in the Defined
Contribution Plan with respect to the Fixed Income Core Investment Fund (the
"Fund") at the end of each Quarter (the "Quarterly Rate"). The amount of
earnings credited to each Participant shall be calculated by taking the
balance in the Participant's account at the end of the prior Quarter, plus
one-half the amount of the contributions to the account during the current
Quarter, times the Quarterly Rate.
(b) (1) In the event of a distribution (whether in a lump sum or installments
and whether or not deferred), earnings shall be credited to the Participant's
account in the manner and amount specified in 3.3(a) through the end of the
Quarter preceding the month in which the distribution is made or installment
payments begin. In addition, for any month(s) less than a full Quarter, the
rate of earnings credited to the account shall be the actual monthly rate of
return on the Fund for said month(s), times the account balance at the end of
the preceding month.
(2) In the event the Participant elects to receive the distribution in
installments pursuant to section 6.3(b), the benefit amount shall be further
credited with an assumed rate of earnings over the installment payment period
at the actual annualized rate of return of the Fund for the year preceding
the year in which installment payments begin. The rate shall be credited so
that the level payments made pursuant to section 6.3(b) shall fully amortize
the account balance and the earnings thereon and each payment shall consist
of a portion of the account balance as of the date benefits thereunder commence
and of earnings on the unpaid portion of the account balance. If any amounts
are added to a Participant's account as the result of any supplemental or
subsequent contributions thereto, the payments of the Participant's benefit
shall be revised (as of the time of such additional contribution) to reflect
the additional amounts.
3.4 Establishment of Accounts
An account shall be established on the Corporation's financial ledgers for
Participants entitled to a benefit under section 3.2. The amounts credited
to the account shall be equal to the amounts of the Participants' benefit under
section 3.2 and section 3.3.
3.5 Benefit Payment or Commencement
(a) Subject to Article V, in the event the Participant is to receive a lump
sum distribution under 6.3(a) or elects to receive an immediate lump sum
distribution under 6.3(b), the Participant's account established under
section 3.4 shall be payable as soon as practicable in the Quarter following
the Quarter of the Participant's termination of employment with the Corporation
and Affiliates.
(b) Subject to Article V, each Participant who satisfies the requirements of
section 6.3(b) may elect to defer the lump sum payment or commencement of
installment payments. In such event, the payment or commencement of
installments shall be made as soon as practicable after the end of the
Quarter following the first anniversary of termination of employment with the
Corporation and Affiliates. The Participant shall be permitted to revoke
such election or to change the election in a manner consistent with section
6.3(b), provided that such a revocation or change shall not be effective
unless the Participant's new written election has been on file with the
Administrator(s) for at least twelve (12) months prior to the date of
Participant's termination of employment with the Employer.
(C) To the extent the payment or commencement of a benefit is deferred under
this section, the amount so deferred shall continue to accrue an assumed rate
of earnings, as described in subsection 3.3(b).
3.6 Form of Distribution
The account established for a Participant under section 3.4, in conjunction
with the account(s) established under section 4.3 shall be payable in the
same manner described under section 6.3; or if applicable, section 5.4.
Article IV. Benefit Limitations Relating to Defined Benefit Plans
4.1 Participation
An employee who is a Highly Compensated Employee or who on or after January
1, 1998, is a Level I Employee (who is designated as such by the
Administrator(s)) and who is a participant in a Defined Benefit Plan shall
become a Participant under this Article on the first date upon which his
compensation and/or benefits under the applicable Defined Benefit Plan are
restricted as a result of the provisions of Code sections 415 and/or
401(a)(17).
4.2 Benefit Amount
A Participant shall receive a benefit equal to the actuarial equivalent of
the benefit under the Defined Benefit Plan that he is prevented from receiving
as a result of the restrictions described in section 4.1. This amount is equal
to the excess of (a) over (b) below:
(a) the amount of benefit which the Participant would have received under the
Defined Benefit Plan if his benefits under any of such Defined Benefit Plan
had not been reduced by the restrictions described in section 4.1; and
(b) the amount of benefit the Participant actually receives under the Defined
Benefit Plan.
For purposes of this section, "actuarial equivalent" shall be determined on
the same basis as single sum distributions payable from the Defined Benefit
Plan and subject to the same actuarial factors and adjustments.
4.3 Establishment of Accounts
An account shall be established on the Corporation's financial ledgers for
Participants entitled to a benefit under section 4.2. The amount credited
shall be equal to the amount of the Participant's benefit under section 4.2,
and, if applicable, adjusted for earnings pursuant to section 4.4(c).
4.4 Benefit Payment or Commencement
(a) Subject to Article V and except as otherwise specified in section 6.3(b),
the benefit payable under Section 4.2 shall be payable to the Participant as
soon as practicable in the Quarter following the Quarter of the Participant's
termination of employment with the Corporation and Affiliates.
(b) Subject to Article V, each Participant who satisfies the requirements of
section 6.3(b) may elect to defer the lump sum payment or commencement of
installment payments. In such event, the payment or commencement of
installments shall be made as soon as practicable after the end of the
Quarter following the first anniversary of termination of employment with the
Corporation and Affiliates. The Participant shall be permitted to revoke
such election or to change the election in a manner consistent with
section 6.3(b), provided that such a revocation or change shall not be
effective unless the Participant's new written election has been on file with
the Administrator(s) for at least twelve (12) months prior to the date of
Participant's termination of employment with the Employer.
(c) To the extent the payment or commencement of a benefit is deferred under
this section, the amount so deferred shall accrue an assumed rate of earnings
in the manner and amount described in section 3.3(b).
4.5 Form of Distribution
The account established for a Participant under section 4.3, in conjunction
with the account(s) established under section 3.4 shall be payable in the
manner described under section 6.3; or if applicable, section 5.4
Article V. Change of Control
5.1 Participation
A Participant shall become entitled to a benefit under this Article only if
covered by the Corporation's change of control policy or an employment
agreement with the Corporation and Affiliates which becomes effective upon a
Change of Control.
5.2 Benefit Amount
A Participant shall receive a benefit only if there is a Change of Control of
the Corporation and the Participant terminates employment with the
Corporation and Affiliates as a result of the Change of Control pursuant to
an employment agreement or the Corporation's change of control policy. The
benefit amount payable will equal the excess of (a) over (b) below:
(a) the amount of benefit which the Participant would have received under
this Plan and all of his Employer-sponsored qualified retirement plans had the
Participant been fully vested in such plans at his termination of employment
with the Corporation and its Affiliates; and
(b) the amount of benefit in which the Participant has a vested interest
under this Plan and all of his Employer-sponsored qualified retirement plans
at his termination of employment with the Corporation and Affiliates.
5.3 Establishment of Accounts
An account shall be established on the Corporation's financial ledgers for
Participants entitled to a benefit under this Article V. The amount credited
shall be equal to the amount of the Participants' benefit under section 5.2.
5.4 Benefit Payment
Notwithstanding any other term or provision of this Plan and in lieu of any
other benefit payable under this Plan, payment of benefits under this Article
V, if any, and the benefit amount payable under Articles III and IV shall be
made within thirty (30) days following the Participant's termination of
employment with the Corporation and Affiliates.
5.5 Form of Distribution
Such benefits described in section 5.4 shall be paid in a single sum
payment. In determining the single sum value of a benefit payable as a
result of participation in a Defined Benefit Plan, the single sum shall be
determined on the same basis as single sum distributions payable from the
Defined Benefit Plan and subject to the same actuarial factors and adjustments.
Article VI. General Provisions
6.1 Funding
All amounts paid under this Plan shall be paid in cash from the general
assets of the Employer. Such amounts shall be reflected on the accounting
records of the Corporation but shall not be construed to create or require
the creation of a trust, custodial account, or escrow account. No Participant
shall have any right, title, or interest whatever in or to any investment
reserves, accounts or funds that the Corporation and Affiliates may purchase,
establish, or accumulate to aid in providing benefits under this Plan. Nothing
contained in this Plan, and no action taken pursuant to its provisions, shall
create a trust or fiduciary relationship of any kind between the Corporation
and Affiliates and an employee or any other person. Neither a Participant nor
beneficiary of a Participant shall acquire any interest greater than that of
an unsecured creditor.
6.2 Vesting
Benefits under this Plan shall become nonforfeitable when and to the extent
they would have become nonforfeitable had they been attributable to the
applicable qualified plan, except as otherwise provided in section 5.2.
Notwithstanding the preceding sentence, a Participant or his beneficiary
shall have no right to benefits under this Plan if the Administrator(s)
determines that he engaged in a willful, deliberate, or gross act of
commission or omission which is substantially injurious to the finances or
reputation of the Employer.
6.3 Form of Distribution
Subject to Article V,
(a) if the total value of the account(s) established for a Participant under
section 3.4 and/or section 4.3 is equal to or less than $100,000, the total
Plan benefit shall be payable in a single-sum distribution on the date
determined pursuant to sections 3.5(a) and 4.4(a). No other form of
distribution will be available to the Participant.
(b) if the total value of the account(s) established for a Participant under
section 3.4 and/or section 4.3 exceeds $100,000, the total Plan benefit shall
be payable in a single sum distribution on the date determined pursuant to
sections 3.5(a) and/or 4.4(a). However, each Participant may elect that
payment be made in either a single sum distribution or equal annual
installments over a period of ten (10) years beginning with the date
determined pursuant to sections 3.5(b) and/or 4.4(b) provided that such
election shall not be effective unless--
(1) the Participant's termination is on account of his Retirement, and
(2) the Participant's written election of such alternative distribution
has been on file with the Administrator(s) for at least twelve (12) months
prior to the date of Participant's termination of employment with the
Employer.
6.4 Death Benefits
(a) Each Participant shall have the right to designate a beneficiary to
receive death benefits under this Plan upon the death of the Participant;
provided, however, that the beneficiary of a married Participant shall be the
Participant's spouse unless the spouse has consented in writing to the
designation of a different beneficiary. In the absence of a valid
beneficiary designation, the Participant's spouse or, if the Participant
is unmarried, the Participant's Beneficiary under the Defined Contribution
Plan shall be the beneficiary of the Participant's benefits under this Plan.
(b) In the event of a Participant's death prior to the commencement of
benefits, his beneficiary will receive such benefits in a single-sum
distribution as soon as practicable after the Participant's death. Benefits
attributable to Defined Benefit Plans shall be calculated and subject to the
same actuarial factors and adjustments used in determining the death benefits
under the applicable Defined Benefit Plan.
(c) If the Participant dies after the commencement of benefits and before all
benefits have been distributed, the beneficiary shall receive all unpaid
benefit amounts, if any, in the same manner and form of distribution as the
Participant.
6.5 Administration
This Plan shall be administered by the Administrator(s). The
Administrator(s) shall have, to the extent appropriate, the same powers,
rights, duties, and obligations with respect to this Plan as they do for
the applicable qualified plans; provided, however, that the Administrator(s)
determination of the questions of construction and interpretation shall be
final, binding, and conclusive upon all persons.
6.6 Claims and Appeals
If any part of an application for benefits under the Plan is denied, the
following claim procedure applies:
(a) The Administrator(s) shall act upon each application for benefits within
ninety (90) days after receipt of the application. If special circumstances
require an extension of time, such Administrator(s) shall notify the
applicant of the delay and shall act within one hundred eighty (180) days
after receipt of the application. The Administrator(s) shall also explain
the reason for the delay and indicate the date on which a decision may be
expected. If the Administrator(s) does not act on an application for benefits
within ninety (90) days (or one hundred eighty (180) days, if applicable),
the application will be deemed to have been denied.
(b) If a claim is denied in whole or in part, the applicant shall be notified
in writing of the following information:
(1) the specific reasons for such denial;
(2) specific reference to pertinent Plan provisions on which the denial
is based;
(3) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such material or
information is necessary; and
(4) an explanation of the Plan's claim review procedure.
(c) The applicant may appeal by delivering a written notice to the
Administrator(s) within sixty (60) days after receiving notice of denial from
the Administrator(s) or, if no notice of denial was received, within one
hundred fifty (150) days (or two hundred forty (240) days, if applicable)
after the claim was filed. The applicant's notice of appeal should:
(1) request a review of his application for benefits by the
Administrator(s);
(2) set forth all of the grounds upon which his request for review is
based and any facts in support; and
(3) set forth any issues or comments which the applicant deems pertinent
to his application.
If he appeals, the applicant may review pertinent documents at any reasonable
time and place specified by the Administrator(s) and may submit any
additional written materials pertinent to the appeal not set forth in the
notice of appeal.
(d) Any appeal will be reviewed by the Administrator(s). The applicant, who
may be represented by any person, will be entitled to appear before the
Administrator(s) to present his claim. The Administrator(s) will decide the
appeal not later than sixty (60) days after receiving the notice of appeal.
If special circumstances require an extension of time, a decision will be
made as soon as possible, but not later than one hundred twenty (120) days
after receipt of the notice of appeal. The Administrator(s) shall also
explain the reason for the delay and indicate the date on which a decision
may be expected. The decision of the Administrator(s) will be in writing
and will state clearly the reasons for the decision, including specific
reference to the provisions of the Plan supporting the decision. The
decision of the Administrator(s) on any and all appeals shall be final
and conclusive upon all applicants.
6.7 Expenses
The expenses of administering the Plan shall be borne by the Employer.
6.8 Indemnification and Exculpation
The Administrator(s), its agents, and officers, directors, and employees of
the Corporation and its Affiliates shall be indemnified and held harmless by
the Corporation against and from any and all loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by them in
connection with or resulting from any claim, action, suit, or proceeding
to which they may be a party or in which they may be involved by reason
of any action taken or failure to act under this Plan and against and
from any and all amounts paid by them in settlement (with the Corporation's
written approval) or paid by them in satisfaction of a judgement in any
such action, suit, or proceeding. The foregoing provision shall not be
applicable to any person if the loss, cost, liability, or expense is due
to such person's gross negligence or willful misconduct.
6.9 Interests Not Transferable
The interests of the Participants and their beneficiaries under the Plan are
not subject to the claims of their creditors and may not be voluntarily or
involuntarily transferred, assigned, alienated, or encumbered.
6.10 Action by the Corporation or Affiliates
Any action required of or permitted by the Corporation or an Affiliate under
this Plan shall be by approval of the Administrator(s) or any person or
persons authorized by the Administrator(s).
6.11 Effect on Other Benefit Plans
Amounts credited or paid under this Plan shall not be considered to be
compensation for the purposes of a qualified pension plan maintained by the
Corporation and Affiliates. The treatment of such amounts under other
employee benefit plans shall be determined pursuant to the provisions of such
plans.
6.12 Tax Liability
The Employer may withhold from any payment of benefits hereunder any taxes
required to be withheld and such sum as the Employer may reasonably estimate
to be necessary to cover any taxes for which the Employer may be liable and
which may be assessed with regard to such payment.
Article VII. Amendment and Termination
7.1 Amendment and Termination
The Corporation, by written action of the Administrator(s), reserves the
right to amend this Plan from time to time or to terminate the Plan at
any time; provided, however, the Corporation will not be entitled to
amend the provisions of Article V following a Change of Control.
