1
EXHIBIT 10.1
$50,000,000
CREDIT AGREEMENT
AMONG
RALCORP HOLDINGS, INC.
as Borrower,
THE LENDERS NAMED HEREIN
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
DATED AS OF
January 31, 1997
ARRANGED BY
FIRST CHICAGO CAPITAL MARKETS, INC.
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II THE FACILITY 17
2.1. The Facility 17
2.1.1. Description of Facility 17
2.1.2. Facility Amount 18
2.1.3. Availability of Facility 18
2.2. Ratable Advances 18
2.2.1. Ratable Advances 18
2.2.2 Ratable Advance Rate Options 18
2.2.3. Method of Selecting Types and Interest Periods for Ratable
Advances 19
2.2.4. Conversion and Continuation of Outstanding Ratable Advances 19
2.3. Competitive Bid Advances 20
2.3.1. Competitive Bid Option 20
2.3.2. Competitive Bid Quote Request 20
2.3.3. Invitation for Competitive Bid Quotes 21
2.3.4. Submission and Contents of Competitive Bid Quotes 21
2.3.5. Notice to Borrower 22
2.3.6. Acceptance and Notice by Borrower 22
2.3.7. Allocation by Agent 23
2.4. Swing Line Loans 23
2.5. Availability of Funds 25
2.6. Commitment Fee; Reductions in Aggregate Commitment 26
2.7. Minimum Amount of Each Ratable Advance 26
2.8. Optional Principal Payments 26
2.9. Changes in Interest Rate, etc. 26
2.10. Rates Applicable After Default 27
2.11. Method of Payment 27
2.12. Notes; Telephonic Notices 27
2.13. Interest Payment Dates; Interest and Fee Basis 27
2.14. Notification of Advances, Interest Rates, Prepayments, Commitment
Reductions and Issuance Requests 28
2.15. Lending Installations 28
2.16. Non-Receipt of Funds by the Agent 28
2.17. Taxes 29
2.18. Agent's Fees 30
2.19. Facility Letters of Credit 30
2.19.1. Issuance of Facility Letters of Credit 30
2.19.2 Participating Interests 30
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2.19.3 Facility Letter of Credit Reimbursement Obligations 31
2.19.4 Procedure for Issuance 32
2.19.5 Nature of the Lenders' Obligations 33
2.19.6 Facility Letter of Credit Fees 33
2.20. Extension of Facility Termination Date 34
ARTICLE III CHANGE IN CIRCUMSTANCES 34
3.1. Yield Protection 34
3.2. Changes in Capital Adequacy Regulations 35
3.3. Availability of Types of Advances 35
3.4. Funding Indemnification 36
3.5. Lender Statements; Survival of Indemnity 36
ARTICLE IV CONDITIONS PRECEDENT 36
4.1. Initial Loans and Facility Letters of Credit 36
4.2. Each Future Advance and Facility Letter of Credit 38
ARTICLE V REPRESENTATIONS AND WARRANTIES 39
5.1. Corporate Existence and Standing 39
5.2. Authorization and Validity 39
5.3. Compliance with Laws and Contracts 39
5.4. Governmental Consents 40
5.5. Financial Statements 40
5.6. Material Adverse Change 40
5.7. Taxes 40
5.8. Litigation and Contingent Obligations 41
5.9. Subsidiaries and Capitalization 41
5.10. ERISA 41
5.11. Defaults 42
5.12. Federal Reserve Regulations 42
5.13. Investment Company; Public Utility Holding Company Act 42
5.14. Certain Fees 42
5.15. Solvency 42
5.16. Ownership of Properties 43
5.17. Indebtedness 43
5.18. Subordinated Indebtedness 43
5.19. Employee Controversies 43
5.20. Material Agreements 43
5.22. Environmental Laws 44
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5.23. Insurance 44
5.24. Disclosure 44
ARTICLE VICOVENANTS 44
6.1. Financial Reporting 44
6.2. Use of Proceeds 46
6.3. Notice of Default. 46
6.4. Conduct of Business 46
6.5. Taxes 46
6.6. Insurance 46
6.7. Compliance with Laws 46
6.8. Maintenance of Properties 47
6.9. Inspection 47
6.10. Capital Stock and Dividends 47
6.11. Indebtedness 47
6.12. Merger 48
6.13. Sale of Assets 48
6.14. Sale of Accounts 48
6.15. Investments and Purchases 48
6.16. Contingent Obligations 49
6.17. Liens 49
6.18. Lease Rentals 50
6.19. Affiliates 50
6.20. Subordinated Indebtedness; Other Indebtedness 51
6.21. Environmental Matters 51
6.22. Change in Corporate Structure; Fiscal Year 51
6.23. Inconsistent Agreements 51
6.24. Financial Covenants 51
6.24.1. Adjusted Net Worth 51
6.24.2. Leverage Ratio 52
6.24.3. Interest Expense Coverage Ratio 52
6.25. ERISA Compliance 52
6.26. Material Subsidiaries 53
ARTICLE VII DEFAULTS 53
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES 54
8.1. Acceleration 54
8.2. Amendments 55
8.3. Preservation of Rights 56
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ARTICLE IX GENERAL PROVISIONS 56
9.1. Survival of Representations 56
9.2. Governmental Regulation 56
9.3. Taxes 56
9.4. Headings 56
9.5. Entire Agreement 56
9.6. Several Obligations; Benefits of this Agreement 57
9.7. Expenses; Indemnification 57
9.8. Numbers of Documents 57
9.9. Accounting 57
9.10. Severability of Provisions 57
9.11. Nonliability of Lenders 58
9.12. CHOICE OF LAW 58
9.13. CONSENT TO JURISDICTION 58
9.14. WAIVER OF JURY TRIAL 58
9.15. Disclosure 59
9.16. Counterparts 59
9.17. Confidentiality 59
ARTICLE X THE AGENT 59
10.1. Appointment 59
10.2. Powers 60
10.3. General Immunity 60
10.4. No Responsibility for Loans, Recitals, etc. 60
10.5. Action on Instructions of Lenders 60
10.6. Employment of Agents and Counsel 60
10.7. Reliance on Documents; Counsel 61
10.8. Agent's Reimbursement and Indemnification 61
10.9. Notice of Default 61
10.10. Rights as a Lender 61
10.11. Lender Credit Decision 61
10.12. Successor Agent 62
ARTICLE XI SETOFF; RATABLE PAYMENTS 62
11.1. Setoff 62
11.2. Ratable Payments 62
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS 63
12.1. Successors and Assigns 63
12.2. Participations. 63
12.2.1. Permitted Participants; Effect. 63
12.2.2. Voting Rights 64
12.2.3. Benefit of Setoff 64
12.3. Assignments 64
12.3.1. Permitted Assignments 64
12.3.2. Effect; Effective Date 64
12.4. Dissemination of Information 64
12.5. Tax Treatment 65
ARTICLE XIII NOTICES 65
13.1. Giving Notice 65
13.2. Change of Address 65
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EXHIBITS
Exhibit A - Note (Ratable Loan)
Exhibit B - Note (Competitive Bid Loan)
Exhibit C - Competitive Bid Quote Request
Exhibit D - Invitation for Competitive Bid Quotes
Exhibit E - Competitive Bid Quote
Exhibit F - Note (Swing Line Loan)
Exhibit G - Compliance Certificate
Exhibit H - Assignment Agreement
SCHEDULES
Schedule 5.5 - Borrower Consolidated Pro Forma
Schedule 5.8 - Material Contingent Obligations
Schedule 5.9 - Subsidiaries and Capitalization
Schedule 5.10 - ERISA
Schedule 5.14 - Brokers' Fees
Schedule 5.16 - Properties
Schedule 5.17 - Indebtedness
Schedule 6.15 - Investments
Schedule 6.17 - Liens
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CREDIT AGREEMENT
This Credit Agreement, dated as of January 31, 1997, is among RALCORP
HOLDINGS, INC., a Missouri corporation, the Lenders and THE FIRST NATIONAL BANK
OF CHICAGO, individually and as Agent.
R E C I T A L S:
A. The Borrower has requested the Lenders to make financial accommodations to
it in the aggregate principal amount of $50,000,000, the proceeds of which the
Borrower will use for the general corporate needs of the Borrower and its
Subsidiaries.
A. The Lenders are willing to extend such financial accommodations on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Lenders and the
Agent hereby agree as follows:
I. ARTICLE
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Borrower.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Borrower at the same time and for the same Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance, a period of not less than 7 and not more than 180 days commencing on a
Business Day selected by the Borrower pursuant to this Agreement. If such
Absolute Rate Interest
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Period would end on a day which is not a Business Day, such Absolute Rate
Interest Period shall end on the next succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at the Absolute
Rate.
"Adjusted Net Income" means, for any computation period (a) Net Income for
such period, minus (plus) (b) earnings (losses) during such period attributable
to the equity investment by the Borrower and its Subsidiaries in Vail Resorts,
Inc. and included in the computation of Net Income for such period, plus (c) to
the extent not included in the computation of Net Income for such period, the
sum of all proceeds in excess of book value (net of related costs, expenses,
fees and taxes) received by the Borrower or any Subsidiary of the Borrower
during such period from the sale or other disposition of the capital stock of
Vail Resorts, Inc.
"Adjusted Net Worth" means at any date (a) Net Worth minus (b) the value
of the equity investment of the Borrower and its Subsidiaries in Vail Resorts,
Inc. included in the computation of Net Worth at such date.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by some or all of the Lenders to the Borrower on the
same Borrowing Date, of the same Type (or on the same interest basis in the
case of Competitive Bid Advances) and, when applicable, for the same Interest
Period and includes a Competitive Bid Advance and a Swing Line Loan.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means First Chicago in its capacity as agent for the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and any
successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders hereunder. The initial Aggregate Commitment is $50,000,000.
"Agreement" means this Credit Agreement, as it may be amended, modified
or restated and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the Financial Statements; provided, however, that for
purposes of all computations required to be made with respect to compliance by
the Borrower with
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Section 6.24, such term shall mean generally accepted accounting principles as
in effect on the date hereof, applied in a manner consistent with those used in
preparing the Financial Statements.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the sum of (a) the higher of (i) the Corporate Base Rate for such day
and (ii) the sum of the Federal Funds Effective Rate for such day plus 1/2% per
annum plus (b) except in the case of Swing Line Loans, the Utilization Margin
for such day.
"Alternate Base Rate Advance" means a Ratable Advance which bears interest
at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Ratable Loan which bears interest at
the Alternate Base Rate.
"Alternate Swing Line Rate" means a rate agreed upon from time to time by
the Borrower and the Swing Line Lender.
"Applicable Commitment Fee Percentage" means, subject to the last sentence
of this definition, for any period, the applicable of the following percentages
in effect with respect to such period as the Leverage Ratio shall fall within
the indicated ranges:
Leverage Ratio Applicable Commitment Fee
---------------------------------------------------------------------------
Percentage
----------
Greater than But less than or Equal to
------------ -------------------------
2.0:1.0 ------- .20%
1.0:1.0 2.0:1.0 .175%
.5:1.0 1.0:1.0 .15%
-- .5:1.0 .125%
The Leverage Ratio shall be calculated by the Borrower as of the end of each of
its Fiscal Quarters commencing June 30, 1997 and shall be reported to the Agent
pursuant to a certificate executed by the chief financial officer, treasurer or
controller of the Borrower and delivered in accordance with Section 6.1(d)
hereof. The Applicable Commitment Fee Percentage shall be adjusted, if
necessary, quarterly as of the tenth day after the required delivery date for
the certificate referenced above; provided, that if such certificate, together
with the financial statements to which such certificate relates, are not
delivered by such tenth day, then the Applicable Commitment Fee Percentage
shall be equal to .20% for the relevant quarter. Until adjusted as described
above after June 30, 1997 the Applicable Commitment Fee Percentage shall be
equal to .175%.
"Applicable Eurodollar Margin" means, subject to the last sentence of this
definition, for any period, the applicable of the following percentages in
effect with respect to such period as the Leverage Ratio shall fall within the
indicated ranges:
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Leverage Ratio Applicable Eurodollar Margin
---------------------------------------------------------------------------
Greater than But less than or Equal to
------------ -------------------------
2.0:1.0 ------- .625%
1.0:1.0 2.0:1.0 .50%
.5:1.0 1.0:1.0 .375%
-- .5:1.0 .25%
The Leverage Ratio shall be calculated by the Borrower as of the end of each of
its Fiscal Quarters commencing June 30, 1997 and shall be reported to the Agent
pursuant to a certificate executed by the chief financial officer, treasurer or
controller of the Borrower and delivered in accordance with Section 6.1(d)
hereof. The Applicable Eurodollar Margin shall be adjusted, if necessary,
quarterly as of the tenth day after the required delivery date for the
certificate referenced above; provided, that if such certificate, together with
the financial statements to which such certificate relates, are not delivered
by such tenth day, then the Applicable Eurodollar Margin shall be equal to
.625% for the relevant quarter. Until adjusted as described above after June
30, 1997, the Applicable Eurodollar Margin shall be equal to .50%.
"Arranger" means First Chicago Capital Markets, Inc. and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Disposition" means any sale, transfer or other disposition of any
asset of the Borrower or any Subsidiary in a single transaction or in a series
of related transactions (other than the sale of inventory or unused or obsolete
equipment in the ordinary course).
"Authorized Officer" means any of the president, chief financial officer,
treasurer or controller of the Borrower, acting singly.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code, sections 1 et seq.,
as the same may be amended from time to time, and any successor thereto or
replacement therefor which may be hereafter enacted.
"Borrower" means Ralcorp Holdings, Inc., a Missouri corporation formerly
known as New Ralcorp Holdings, Inc., and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made or a Facility
Letter of Credit is issued hereunder.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago for the conduct of substantially all
of their commercial lending activities and on which dealings in United States
dollars are carried
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on in the London interbank market, and (b) for all other purposes, a day (other
than a Saturday or Sunday) on which banks generally are open in Chicago for the
conduct of substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change" is defined in Section 3.2.
"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, including without limitation any acquisition
effected by means of any transaction contemplated by Section 6.12, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 20% or more
of the outstanding shares of voting stock of the Borrower, or (b) during any
period of 25 consecutive calendar months, commencing on the date of this
Agreement, the ceasing of those individuals (the "Continuing Directors") who
(i) were directors of the Borrower on the first day of each such period or (ii)
subsequently became directors of the Borrower and whose initial election or
initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the
Borrower, to constitute a majority of the board of directors of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commercial Letter of Credit" means a trade or commercial Facility Letter
of Credit issued by an Issuer pursuant to Section 2.19 hereof.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans (other than Swing Line Loans) and participate in Facility Letters of
Credit not exceeding the amount set forth opposite its signature below and as
set forth in any Notice of Assignment relating to any assignment which has
become effective pursuant to Section 12.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Lenders to the Borrower at the same time and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.3.6.
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"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
of Exhibit B hereto, with appropriate insertions, duly executed and delivered
to the Agent by the Borrower for the account of a Lender and payable to the
order of such Lender, including any amendment, modification, renewal or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit E hereto completed and delivered by a Lender to the Agent in
accordance with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit C hereto completed and delivered by the
Borrower to the Agent in accordance with Section 2.3.2.
"Condemnation" is defined in Section 7.8.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Consolidated Person" means, for the taxable year of reference, each
Person which is a member of the affiliated group of the Borrower if
Consolidated returns are or shall be filed for such affiliated group for
federal income tax purposes or any combined or unitary group of which the
Borrower is a member for state income tax purposes.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person,
or agrees to maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor of such other
Person against loss, including, without limitation, any comfort letter,
operating agreement or take-or-pay contract or application for a Letter of
Credit.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
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"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as said corporate base rate changes. The Corporate Base Rate is a
reference rate and does not necessarily represent the lowest or best rate of
interest actually charged to any customer. First Chicago may make commercial
loans or other loans at rates of interest at, above or below the Corporate Base
Rate.
"Default" means an event described in Article VII.
"Divestitures" means collectively, the sale by Old Ralcorp of its
brand-name cereal and snack food businesses to General Xxxxx Missouri, Inc. and
the sale by the Borrower of stock of Xxxxxxx Resorts, Inc. to Vail Resorts,
Inc.
"EBIT" means, for any applicable computation period, the Borrower's and
Subsidiaries' Net Income on a consolidated basis, plus (a) Federal, state,
local and foreign income and franchise taxes paid or accrued during such period
and (b) interest expenses paid or accrued during such period.
"EBITDA" means, for any applicable computation period, the Borrower's and
Subsidiaries' Net Income on a consolidated basis, plus (a) Federal, state,
local and foreign income and franchise taxes paid or accrued during such
period, (b) interest expenses paid or accrued during such period, and (c)
amortization and depreciation deducted in determining Net Income for such
period.
"Environmental Claims" means all claims, investigations, litigation,
administrative proceedings, notices, requests for information, whether pending
or threatened, or judgements or orders, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for
any violation of any Environmental Laws, or for any Release or injury to the
environment.
"Environmental Laws" means all federal, state and local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, direct duties, requests, licenses, approvals,
certificates, decrees, standards, permits and other authorizations of, and
agreements with, any Governmental Authority, in each case relating to
environmental, health, safety and land use matters, including without
limitations, chemical substances, air emissions, effluent discharges and the
storage, treatment, transport and disposal of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Advance" means a Eurodollar Bid Rate Advance or a Eurodollar
Ratable Advance, or both, as the case may be.
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"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Eurodollar Bid Rates pursuant to Section 2.3.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the rate determined by the Agent to be the
rate at which deposits in U.S. dollars are offered by First Chicago to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period, in the approximate amount of First Chicago's relevant
Eurodollar Ratable Loan (or in the case of a Eurodollar Bid Rate Advance, in an
amount comparable to the amount of such Advance) and having a maturity
approximately equal to such Eurodollar Interest Period; provided, that the
Eurodollar Base Rate for a Eurodollar Ratable Advance having a seven day
Interest Period shall be determined by reference to a maturity of one month.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Lender for the relevant Eurodollar Interest Period, the sum of
(a) the Eurodollar Base Rate and (b) the Competitive Bid Margin offered by such
Lender and accepted by the Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which bears
interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at the
Eurodollar Bid Rate.
"Eurodollar Interest Period" means, with respect to a Eurodollar Ratable
Advance or a Eurodollar Bid Rate Advance, a period of seven days or one, two,
three or six months commencing on a Business Day selected by the Borrower
pursuant to this Agreement. A Eurodollar Interest Period of one, two, three or
six months shall end on (but exclude) the day which corresponds numerically to
such date one, two, three or six months thereafter; provided, however, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a Business
Day, such Eurodollar Interest Period shall end on the next succeeding Business
Day; provided, however, that if, with respect to a Eurodollar Default Period of
one, two, three or six month, said next succeeding Business Day falls in a new
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Eurodollar Loan" means a Eurodollar Ratable Loan or Eurodollar Bid Rate
Loan, or both, as the case may be.
"Eurodollar Ratable Advance" means an Advance which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.3.
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"Eurodollar Ratable Loan" means a Loan requested by the Borrower pursuant
to Section 2.2.3 which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable Advance for
the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(ii) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (b) the Applicable Eurodollar Margin plus
(c) the Utilization Margin plus (d) only in the case of Eurodollar Ratable
Advances having a seven day Interest Period, .125%. The Eurodollar Rate shall
be rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"Facility Letter of Credit" means a Letter of Credit issued pursuant to
Section 2.19.
"Facility Letter of Credit Obligations" means as at the time of
determination thereof, the sum of (a) the Reimbursement Obligations then
outstanding and (b) the aggregate then undrawn face amount of the then
outstanding Facility Letters of Credit.
"Facility Letter of Credit Sublimit" means an aggregate amount of
$10,000,000.
"Facility Termination Date" means January 31, 2000, as such date may be
extended pursuant to Section 2.20.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10 a.m.
(Chicago time) on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent in its
sole discretion.
"Financial Statements" is defined in Section 5.5.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Fiscal Quarter" means one of the four three-month accounting periods
comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending September 30
of each year.
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"Form 10" means the Registration Statement on Form 10 for Ralcorp
Holdings, Inc. dated December 27, 1996.
"Governmental Authority" means any government (foreign or domestic) or any
state or other political subdivision thereof or any governmental body, agency,
authority, department or commission (including without limitation any taxing
authority or political subdivision) or any instrumentality or officer thereof
(including without limitation any court or tribunal) exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any corporation, partnership or other entity directly or
indirectly owned or controlled by or subject to the control of any of the
foregoing.
"Guarantors" means Xxxxxxx, Inc., Beech-Nut Nutrition Corporation and each
other Material Subsidiary.
"Hazardous Materials" means any toxic or hazardous waste, substance or
chemical or any pollutant, contaminant, chemical or other substance defined or
regulated pursuant to any Environmental Laws, including, without limitation,
asbestos, petroleum or crude oil.
"Indebtedness" of a Person means such Person's (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances, or similar
instruments, (e) Capitalized Lease Obligations, (f) Rate Hedging Obligations,
(g) Contingent Obligations, (h) obligations for which such Person is obligated
pursuant to or in respect of a Facility Letter of Credit and the face amount of
any other Letter of Credit, (i) obligations under so-called "synthetic leases"
and (j) repurchase obligations or liabilities of such Person with respect to
accounts or notes receivable sold by such Person.
"Interest Expense Coverage Ratio" means for any applicable computation
period of the Borrower, the ratio of EBIT to the Borrower's and its
Subsidiaries' gross interest expenses on a consolidated basis for such period,
all as determined in accordance with Agreement Accounting Principles.
"Interest Period" means a Eurodollar Interest Period or an Absolute Rate
Interest Period. Notwithstanding the foregoing, each Swing Line Loan bearing
interest at the Alternate Swing Line Rate shall be deemed to have an Interest
Period of from one to seven days as agreed upon between the Borrower and the
Swing Line Lender.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable
arising in the ordinary course of
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18
business on terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, partnership interests, notes, debentures or
other securities of any other Person made by such Person.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit D hereto, completed
and delivered by the Agent to the Lenders in accordance with Section 2.3.3.
"Issuance Request" is defined in Section 2.19.4.
"Issuer" means First Chicago.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Cash Collateral Account" is defined in Section 8.1.
Such account and the related cash collateralization shall be subject to
documentation satisfactory to the Agent.
"Leverage Ratio" means, with respect to the Borrower on a consolidated
basis with its Subsidiaries, at the end of any Fiscal Quarter, the ratio of (a)
Total Debt at the end of such Fiscal Quarter to (b) EBITDA (i) for the two
months ending March 31, 1997 multiplied by 6 in the case of the Fiscal Quarter
ending on such date, (ii) for the five months ending June 30, 1997 multiplied
by 12/5 in the case of the Fiscal Quarter ending on such date, (iii) for the
eight months ending September 30, 1997 multiplied by 3/2 in the case of the
Fiscal Quarter ending on such date, (iv) for the eleven months ending December
31, 1997 multiplied by 12/11 in the case of the Fiscal Quarter ending on such
date and (v) for the four Fiscal Quarters then ending in the case of each
Fiscal Quarter ending thereafter.
"Lien" means any security interest, lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance and "Loans" means, with respect to the Lenders, the aggregate of all
Advances. The terms "Loan" and "Loans" shall also include any Swing Line
Loans.
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"Loan Documents" means this Agreement, the Notes, the Reimbursement
Agreements and the other documents and agreements contemplated hereby and
executed by the Borrower in favor of the Agent or any Lender.
"Margin Stock" has the meaning assigned to that term under Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or other) and results of operations of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform its obligations under the Loan Documents, or (c) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Subsidiary" means a Subsidiary of the Borrower organized under
the laws of a jurisdiction located within the United States and at any time
having assets with a fair market value in excess of $10,000,000.
"Moody's" means Xxxxx'x Investor Services, Inc.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income earned during such period as determined in accordance with Agreement
Accounting Principles, but excluding any non-cash charges or gains which are
unusual, non-recurring or extraordinary.
"Net Worth" means at any date the consolidated common stockholders' equity
of the Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles.
"Notes" means, collectively, the Competitive Bid Notes, the Ratable Notes
and the Swing Line Note; and "Note" means any one of the Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, the Facility Letter of Credit Obligations and all other
liabilities (if any), whether actual or contingent, of the Borrower with
respect to Facility Letters of Credit, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower to
the Lenders or to any Lender, the Agent or any indemnified party hereunder
arising under any of the Loan Documents.
"Old Ralcorp" means the Missouri corporation named Ralcorp Holdings, Inc.,
which was merged with General Xxxxx Missouri, Inc. on January 31, 1997.
"Participants" is defined in Section 12.2.1.
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"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan, as defined in Section 3(2)
of ERISA, as to which the Borrower or any member of the Controlled Group may
have any liability.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased
or operated by such Person.
"Pro Forma" is defined in Section 5.5.
"pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the aggregate principal
amount of outstanding Advances and Facility Letter of Credit Obligations.
"Purchase" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or
any of its Subsidiaries (a) acquires any going business or all or substantially
all of the assets of any firm, corporation or division or line of business
thereof, whether through purchase of assets, merger or otherwise, or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership.
"Purchasers" is defined in Section 12.3.1.
"Xxxxxxx Obligations" means the indemnification obligations of the
Borrower existing on the date hereof in favor of Xxxxxxx Purina Company with
respect to its guaranty of the obligations of Xxxxxxx Resorts, Inc. under the
Sports Facilities Refunding Revenue Bonds identified on Schedule 5.8.
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"Ratable Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Ratable Loans made by the Lenders to the Borrower at the
same time, of the same Type and for the same Interest Period.
"Ratable Borrowing Notice" is defined in Section 2.2.3.
"Ratable Loan" means a Loan made by a Lender pursuant to Section 2.2
hereof.
"Ratable Note" means a promissory note in substantially the form of
Exhibit A hereto, duly executed and delivered to the Agent by the Borrower for
the account of each Lender and payable to the order of a Lender in the amount
of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (b) any and all
cancellations, buybacks, reversals, terminations or assignments of any of the
foregoing.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to depositary institutions.
"Regulation G" means Regulation G of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor
or other regulation or official interpretation of said Board of Governors
relating to the extension of credit by Persons other than banks, brokers and
dealers for the purpose of purchasing or carrying margin stocks applicable to
such Persons.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor
or other regulation or official interpretation of such Board of Governors
relating to the extension of credit by securities brokers and dealers for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to such Persons.
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"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor
or other regulation or official interpretation of said Board of Governors
relating to the extension of credit by the specified lenders for the purpose of
purchasing or carrying margin stocks applicable to such Persons.
"Reimbursement Agreement" means a letter of credit application and
reimbursement agreement in such form as the Issuer may from time to time employ
in the ordinary course of business.
"Reimbursement Obligations" means, at any time, the aggregate (without
duplication) of the Obligations of the Borrower to the Lenders, the Issuer
and/or the Agent in respect of all unreimbursed payments or disbursements made
by the Lenders, the Issuer and/or the Agent under or in respect of draws made
under the Facility Letters of Credit.
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any operating lease of Property.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event; provided, that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, 66-2/3% of the sum of (a) the aggregate unpaid principal amount of
the outstanding Loans plus (b) the aggregate amount of the outstanding Facility
Letter of Credit Obligations.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx
Companies.
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"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan subject to Title IV of ERISA
maintained by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group, other than a
Multiemployer Plan.
"Solvent" means, when used with respect to a Person, that (a) the fair
saleable value of the assets of such Person is in excess of the total amount of
the present value of its liabilities (including for purposes of this definition
all liabilities (including loss reserves as determined by such Person), whether
or not reflected on a balance sheet prepared in accordance with Agreement
Accounting Principles and whether direct or indirect, fixed or contingent,
secured or unsecured, disputed or undisputed), (b) such Person is able to pay
its debts or obligations in the ordinary course as they mature and (c) such
Person does not have unreasonably small capital to carry out its business as
conducted and as proposed to be conducted. "Solvency" shall have a correlative
meaning.
"Standby Letter of Credit" means a Facility Letter of Credit which is not
a Commercial Letter of Credit.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to
the written satisfaction of the Agent.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (b) any partnership, association, joint venture, limited liability company
or similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain Guaranty, dated as of the date
hereof, duly executed and delivered by the Guarantors in favor of the Agent, on
behalf of the Lenders, as the same may be amended, supplemented or otherwise
modified from time to time.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (a) represents more than 15% of the
consolidated tangible assets of the Borrower and its Subsidiaries, as would be
shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the end of the Fiscal Quarter next preceding the date on
which such determination is made, or (b) is responsible for more than 5% of the
consolidated Net Income from continuing operations of the Borrower and its
Subsidiaries for the 12-month period ending as of the end of the Fiscal Quarter
next preceding the date of determination.
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"Swing Line Lender" means First Chicago or any other Lender as a successor
Swing Line Lender.
"Swing Line Commitment" means the obligation of the Swing Line Lender to
make Swing Line Loans hereunder in an aggregate amount at any one time
outstanding not to exceed $5,000,000. The Swing Line Commitment will
automatically and permanently terminate on the Facility Termination Date.
"Swing Line Loan" means a Loan made by the Swing Line Lender pursuant to
Section 2.4.
"Swing Line Note" means a promissory note substantially in the form of
Exhibit F hereto, duly executed and delivered to the Administrative Agent by
the Borrower and payable to the order of the Swing Line Lender in the amount of
its Swing Line Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower
or any other member of the Controlled Group from such Plan during a plan year
in which the Borrower or any other member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was deemed
such under Section 4068(f) of ERISA, (c) the termination of such Plan, the
filing of a notice of intent to terminate such Plan or the treatment of an
amendment of such Plan as a termination under Section 4041 of ERISA, (d) the
institution by the PBGC of proceedings to terminate such Plan or (e) any event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or appointment of a trustee to administer, such Plan.
"Thomson" means Thomson BankWatch Inc.
"Total Debt" means (a) all Indebtedness of the Borrower and its
Subsidiaries, on a consolidated basis, reflected on a balance sheet prepared in
accordance with Agreement Accounting Principles, plus, without duplication (b)
the face amount of all outstanding Letters of Credit in respect of which the
Borrower or any Subsidiary has any reimbursement obligation and the principal
amount of all Contingent Obligations of the Borrower and its Subsidiaries minus
(c) to the extent included in clause (b) above, (i) up to $15,000,000 in
aggregate face or principal amount of surety bonds and Letters of Credit
relating to workers' compensation and similar benefits and (ii) the Xxxxxxx
Obligations.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as an Alternate Base
Rate Advance, Eurodollar Advance or Absolute Rate Advance.
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"UCC" means the Illinois Uniform Commercial Code as amended or modified
and in effect from time to time.
"Unfunded Liability" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under a Single Employer Plan
exceeds the fair market value of assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans using PBGC
actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Utilization Margin" means (a) .05% at all times when the sum of the
aggregate principal amount of all outstanding Loans and the aggregate amount of
Facility Letter of Credit Obligations equals or exceeds 50% of the Aggregate
Commitment and (b) 0% at all other times.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint
venture, limited liability company or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Unrefunded Swing Line Loans" is defined in Section 2.4(d).
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
I. ARTICLE
THE FACILITY
A. The Facility.
2.1.1. Description of Facility. The Lenders hereby establish in favor of
the Borrower a revolving credit facility pursuant to which, and upon the terms
and subject to the conditions herein set out:
1. each Lender severally agrees to make Ratable Loans to the Borrower in
accordance with Section 2.2 in amounts not to exceed in the aggregate at
any one time outstanding the amount of its Commitment less (i) the amount
of such Lender's pro-rata share of the outstanding principal amount of
all Competitive Bid Advances (regardless of which Lender or Lenders made
such
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Competitive Bid Advances) exclusive of Competitive Bid Advances being
repaid substantially contemporaneously with the making of any such
Ratable Loans plus (ii) the amount of such Lender's pro-rata share of the
outstanding principal amount of all Swing Line Loans exclusive of Swing
Line Loans being repaid substantially contemporaneously with the making
of any such Ratable Loans;
1. each Lender may, in its sole discretion, make bids to make Competitive
Bid Loans to the Borrower, and make such Loans, in accordance with
Section 2.3; and
(c) the Swing Line Lender agrees to make Swing Line Loans to the
Borrower in accordance with Section 2.4.
2.1.2. Facility Amount. In no event may the sum of (a) the aggregate
principal amount of all outstanding Advances (including the Ratable Advances,
the Competitive Bid Advances and the Swing Line Loans) plus (b) the outstanding
amount of Facility Letter of Credit Obligations at any time exceed the
Aggregate Commitment. If at any time the aggregate amount of the sum of the
Loans and the Facility letter of Credit Obligations exceeds the Aggregate
Commitment, the Borrower shall repay immediately its then outstanding Loans
(first Swing Line Loans, then Ratable Loans and then Competitive Bid Loans) in
such amount as may be necessary to eliminate such excess; provided, that if an
excess remains after repayment of all outstanding Loans, then the Borrower
shall cash collateralize the Facility Letter of Credit Obligations by
depositing into the Letter of Credit Cash Collateral Account such amount as may
be necessary to eliminate such excess.
2.1.3. Availability of Facility. Subject to the terms of this Agreement,
from and including the date hereof to, but not including the Facility
Termination Date the Borrower may borrow, repay and reborrow Advances
hereunder. All outstanding Loans and Advances and all other unpaid Obligations
shall be due and payable in full by the Borrower on the Facility Termination
Date.
A. Ratable Advances.
2.2.1. Ratable Advances. Each Ratable Advance hereunder shall consist of
borrowings made from the several Lenders ratably in proportion to the amounts
of their respective Commitments. The Borrower's obligation to pay the
principal of, and interest on, the Ratable Advances shall be evidenced by the
Ratable Notes. Although the Ratable Notes shall be dated the date of the
initial Advance, interest in respect thereof shall be payable only for the
periods during which the Loans evidenced thereby are outstanding and, although
the stated amount of each Ratable Note shall be equal to the applicable
Lender's Commitment, each Ratable Note shall be enforceable, with respect to
the Borrower's obligation to pay the principal amount thereof, only to the
extent of the unpaid principal amount of the Ratable Loans at the time
evidenced thereby.
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2.2.2 Ratable Advance Rate Options. The Ratable Advances may be Alternate
Base Rate Advances or Eurodollar Ratable Advances, or a combination thereof,
selected by the Borrower in accordance with Section 2.2.3 or 2.2.4. No Ratable
Advance may mature after, or have an Interest Period which extends beyond, the
Facility Termination Date.
2.2.3. Method of Selecting Types and Interest Periods for Ratable
Advances. The Borrower shall select the Type of each Ratable Advance and, in
the case of each Eurodollar Ratable Advance, the Eurodollar Interest Period
applicable to such Ratable Advance from time to time. The Borrower shall give
the Agent irrevocable notice (a "Ratable Borrowing Notice") not later than
10:00 a.m. (Chicago time) on the Borrowing Date of each Alternate Base Rate
Advance and three Business Days before the Borrowing Date for each Eurodollar
Ratable Advance. Notwithstanding the foregoing, a Ratable Borrowing Notice for
an Alternate Base Rate Advance may be given not later than 30 minutes after the
time which the Borrower is required to reject one or more bids offered in
connection with an Absolute Rate Auction pursuant to Section 2.3.6 and a
Ratable Borrowing Notice for a Eurodollar Ratable Advance may be given not
later than 30 minutes after the time the Borrower is required to reject one or
more bids offered in connection with a Eurodollar Auction pursuant to Section
2.3.6. A Ratable Borrowing Notice shall specify:
1. the Borrowing Date, which shall be a Business Day, of such Ratable
Advance;
1. the aggregate amount of such Ratable Advance, which, when added to all
outstanding Ratable Advances, Swing Line Loans and Competitive Bid
Advances and after giving effect to the repayment of any such outstanding
Advances or Loans out of the proceeds of the requested Ratable Advance,
shall not exceed the Aggregate Commitment;
1. the Type of Advance selected; and
1. in the case of each Eurodollar Ratable Advance, the Eurodollar
Interest Period applicable thereto (which may not end after the Facility
Termination Date).
2.2.4. Conversion and Continuation of Outstanding Ratable Advances.
Alternate Base Rate Advances shall continue as Alternate Base Rate Advances
unless and until such Alternate Base Rate Advances are converted into
Eurodollar Ratable Advances. Each Eurodollar Ratable Advance shall continue as
a Eurodollar Ratable Advance until the end of the then applicable Eurodollar
Interest Period therefor, at which time such Eurodollar Ratable Advance shall
be automatically converted into an Alternate Base Rate Advance unless the
Borrower shall have given the Agent a Conversion/Continuation Notice requesting
that, at the end of such Eurodollar Interest Period, such Eurodollar Ratable
Advance continue as a Eurodollar Ratable Advance for the same or another
Eurodollar Interest Period. Subject to the terms of Section 2.7, the
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Borrower may elect from time to time to convert all or any part of a Ratable
Advance of any Type into any other Type or Types of Ratable Advances; provided
that any conversion of any Eurodollar Ratable Advance shall be made on, and
only on, the last day of the Eurodollar Interest Period applicable thereto.
The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Ratable Advance or
continuation of a Eurodollar Ratable Advance not later than 10:00 a.m. (Chicago
time) at least one Business Day, in the case of a conversion into an Alternate
Base Rate Advance, or at least three Business Days, in the case of a conversion
into or continuation of a Eurodollar Ratable Advance, prior to the date of the
requested conversion or continuation, specifying:
1. the requested date, which shall be a Business Day, of such conversion
or continuation;
1. the aggregate amount and Type of Ratable Advance which is to be
converted or continued; and
1. the amount and Type(s) of Ratable Advance(s) into which such Ratable
Advance is to be converted or continued and, in the case of a
conversion into or continuation of an Eurodollar Ratable
Advance, the duration of the Eurodollar Interest Period applicable
thereto.
A. Competitive Bid Advances.
2.3.1. Competitive Bid Option. In addition to Ratable Advances pursuant
to Section 2.2, but subject to the terms and conditions of this Agreement
(including, without limitation, the limitation set forth in Section 2.1.2 as to
the maximum aggregate principal amount of all outstanding Advances and Facility
Letter of Credit Obligations hereunder), prior to the Facility Termination Date
the Borrower may, as set forth in this Section 2.3, request the Lenders to make
offers to make Competitive Bid Advances to the Borrower. Each Lender may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section 2.3. The Borrower's obligation to pay the principal of, and interest
on, the Competitive Bid Advances shall be evidenced by the Competitive Bid
Notes. Although the Competitive Bid Notes shall be dated the date of the
initial Advance, interest in respect thereof shall be payable only for the
periods during which the Loans evidenced thereby are outstanding. Each
Competitive Bid Loan shall be repaid in full by the Borrower on the last day of
the Interest Period applicable thereto.
2.3.2. Competitive Bid Quote Request. When the Borrower wishes to request
offers to make Competitive Bid Loans under this Section 2.3, it shall transmit
to the Agent by telecopy a Competitive Bid Quote Request substantially in the
form of Exhibit C hereto so as to be received no later than (a) 10:00 a.m.
(Chicago time) at least five Business Days prior to the Borrowing Date proposed
therein, in the case of a Eurodollar Auction or (b) 9:00 a.m. (Chicago time) at
least one Business Day prior to the Borrowing Date proposed therein, in the
case of an Absolute Rate Auction specifying:
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1. the proposed Borrowing Date, which shall be a Business Day, for the
proposed Competitive Bid Advance;
1. the aggregate principal amount of such Competitive Bid Advance;
1. whether the Competitive Bid Quotes requested are to set forth a
Eurodollar Bid Rate, an Absolute Rate, or both; and
2. the Interest Period applicable thereto (which may not end after the
Facility Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within 5 Business Days (or such other number of
days as the Borrower and the Agent may agree) of any other Competitive Bid
Quote Request. A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit C hereto shall be rejected, and the
Agent shall promptly notify the Borrower of such rejection by telecopy.
2.3.3. Invitation for Competitive Bid Quotes. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.3.2,
the Agent shall send to each of the Lenders by telex or telecopy an Invitation
for Competitive Bid Quotes substantially in the form of Exhibit D hereto, which
shall constitute an invitation by the Borrower to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section 2.3.
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2.3.4. Submission and Contents of Competitive Bid Quotes.
1. Each Lender may, in its sole discretion, submit a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Loans in
response to any Invitation for Competitive Bid Quotes. Each Competitive
Bid Quote must comply with the requirements of this Section 2.3.4 and
must be submitted to the Agent by telex or telecopy at its offices
specified in or pursuant to Article XIII not later than (i) 9:00 a.m.
(Chicago time) at least four Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (ii) 9:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable prior notice to the
Lenders, such other time and date as the Borrower and the Agent may
agree); provided that Competitive Bid Quotes submitted by First Chicago
may only be submitted if the Agent or First Chicago notifies the Borrower
of the terms of the offer or offers contained therein not later than 15
minutes prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to Articles IV
and VIII, any Competitive Bid Quote so made shall be irrevocable except
with the written consent of the Agent given on the instructions of the
Borrower.
1. Each Competitive Bid Quote shall be in substantially the form of
Exhibit E hereto and shall in any case specify:
a) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid Quotes;
(a) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount may be
greater than, less than or equal to the Commitment of the quoting
Lender, must be at least $5,000,000 and an integral multiple of
$1,000,000, and may not exceed the principal amount of
Competitive Bid Loans for which offers were requested;
a) in the case of a Eurodollar Auction, the Competitive Bid Margin
offered for each such Competitive Bid Loan;
a) the minimum amount, if any, of the Competitive Bid Loan which
may be accepted by the Borrower;
a) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan; and
a) the identity of the quoting Lender.
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1. The Agent shall reject any Competitive Bid Quote that:
a) is not substantially in the form of Exhibit E hereto or does
not specify all of the information required by Section 2.3.4(b);
a) contains qualifying, conditional or similar language, other
than any such language contained in Exhibit E hereto;
a) proposes terms other than or in addition to those set forth in
the applicable Invitation for Competitive Bid Quotes; or
a) arrives after the time set forth in Section 2.3.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.3.4(c), then the Agent shall promptly notify the relevant Lender of such
rejection.
2.3.5. Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (a) of any Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.3.4 and (b) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by the
Agent unless such subsequent Competitive Bid Quote specifically states that it
is submitted solely to correct a manifest error in such former Competitive Bid
Quote. The Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Eurodollar Bid Rates or Absolute
Rates, as the case may be, so offered.
2.3.6. Acceptance and Notice by Borrower. Not later than (a) 10:00 a.m.
(Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (b) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Lenders, such other time and
date as the Borrower and the Agent may agree), the Borrower shall notify the
Agent of its acceptance or rejection of the offers so notified to it pursuant
to Section 2.3.5; provided, however, that the failure by the Borrower to give
such notice to the Agent shall be deemed to be a rejection of all such offers.
In the case of acceptance, such notice (a "Competitive Bid Borrowing Notice")
shall specify the aggregate principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Competitive Bid Quote in whole
or in part (subject to the terms of Section 2.3.4(b)(iv)); provided that:
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1. the aggregate principal amount of each Competitive Bid Advance may not
exceed the applicable amount set forth in the related Competitive Bid
Quote Request,
1. acceptance of offers may only be made on the basis of ascending
Eurodollar Bid Rates or Absolute Rates, as the case may be, and
1. the Borrower may not accept any offer that is described in Section
2.3.4(c) or that otherwise fails to comply with the requirements of this
Agreement.
2.3.7. Allocation by Agent. If offers are made by two or more Lenders
with the same Eurodollar Bid Rates or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers; provided, however,
that no Lender shall be allocated a portion of any Competitive Bid Advance
which is less than the minimum amount which such Lender has indicated that it
is willing to accept. Allocations by the Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The Agent
shall promptly, but in any event on the same Business Day, notify each Lender
of its receipt of a Competitive Bid Borrowing Notice and the aggregate
principal amount of such Competitive Bid Advance allocated to each
participating Lender.
A. Swing Line Loans.
1. On the terms and subject to the conditions and relying upon the
representations and warranties herein set forth, the Swing Line Lender agrees
at any time and from time to time from and including the date hereof to but
excluding the earlier of the Facility Termination Date and the termination of
the Commitments or the Swing Line Commitment, in accordance with the terms
hereof, to make Swing Line Loans to the Borrower in an aggregate principal
amount at any time outstanding not to exceed the lesser of (i) the amount of
its Swing Line Commitment at such time and (ii) an amount equal to (A) the
Aggregate Commitment at such time minus (B) the sum of the aggregate principal
amounts of all Ratable Loans, Competitive Bid Loans and Swing Line Loans
outstanding at such time. The Swing Line Loans shall be made by the Swing Line
Lender, at the option of the Borrower, either at the Alternate Base Rate or at
the Alternate Swing Line Rate. All Swing Line Loans shall be in a minimum
amount of $1,000,000 and in any integral multiple of $100,000 if in excess
thereof. In no event shall any Swing Line Loan be made hereunder if (i) the
Agent and the Swing Line Lender shall have received notice from the Required
Lenders prior to any such Swing Line Loan that a condition specified in Section
4.1 or 4.2 has not been satisfied and (ii) such condition shall not have been
subsequently waived in compliance with Section 8.2.
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1. The Borrower shall give the Swing Line Lender (with a copy to the Agent)
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice shall be promptly confirmed in writing or by telecopy) not later than
noon, Chicago time, on the day of a proposed Swing Line Loan. Such notice
shall be delivered on a Business Day, shall be irrevocable and shall refer to
this Agreement and shall specify the requested Borrowing Date (which shall be a
Business Day) and amount of such Swing Line Loan.
1. The Swing Line Lender shall by 2:00 p.m., Chicago time, on the requested
Borrowing Date, make the requested Swing Line Loan by crediting the principal
amount thereof, in immediately available funds, to the account of the Borrower
maintained with the Swing Line Lender or to such other account as may be
designated by the Borrower and be acceptable to the Swing Line Lender.
1. The Swing Line Loans shall be evidenced by the Swing Line Note and each
Swing Line Loan shall be paid in full by the Borrower on the earlier of the
Facility Termination Date and the date five Business Days after the making of
such Swing Line Loan.
1. Notwithstanding the occurrence of any Default or Unmatured Default or
noncompliance with the conditions precedent set forth in Article IV, if (i) by
10:00 a.m. Chicago time on the fourth Business Day following the Borrowing Date
of any Swing Line Loan the Agent shall not have received a Ratable Borrowing
Notice delivered by the Borrower pursuant to Section 2.2.3 requesting that
Ratable Loans be made pursuant to Section 2.2 on the immediately succeeding
Business Day in an amount at least equal to the aggregate principal amount of
such Swing Line Loan or (ii) on any date the Swing Line Lender in its sole
discretion shall so request with respect to the outstanding Swing Line Loans,
the Agent shall be deemed to have received a Ratable Borrowing Notice from the
Borrower pursuant to Section 2.2.3 requesting that a Ratable Advance of
Alternate Base Rate Loans be made pursuant to Section 2.2 on such immediately
succeeding Business Day in an amount equal to the aggregate amount of such
Swing Line Loans, and the procedures set forth in Section 2.5 shall be followed
in making such Alternate Base Rate Loans. The proceeds of such Alternate Base
Rate Loans (or other Loans described in Section 2.4(e)(i), if requested)
received by the Agent shall be immediately delivered to the Swing Line Lender
and applied to the direct repayment of such Swing Line Loans to the extent
thereof. Effective on the day such Ratable Loans are made, the portion of the
Swing Line Loans so paid shall no longer be outstanding as Swing Line Loans and
shall be outstanding as Ratable Loans of the Lenders bearing interest at a rate
determined by reference to the Alternate Base Rate, in accordance with the
provisions of this Article II. The Borrower authorizes the Agent and the Swing
Line Lender to charge the Borrower's account maintained with the Swing Line
Lender (up to the amount available in such account) in order to immediately pay
the amount of the Swing Line Loans to the extent amounts received from the
Lenders are not sufficient to repay in full such Swing Line Loans. If any
portion of any such amount paid (or deemed paid) to the Swing Line Lender
should be recovered by or on behalf of the Borrower from the Swing Line Lender
in the event of the bankruptcy or reorganization of
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the Borrower or otherwise, the loss of the amount so recovered shall be ratably
shared among all Lenders in the manner contemplated by Section 11.2.
1. If, for any reason (including, without limitation, the occurrence of a
Default described in Section 7.6 or 7.7 of Article VII), Alternate Base Rate
Loans may not be, or are not, made pursuant to paragraph (e) of this Section
2.4 to repay Swing Line Loans as required by such paragraph, effective on the
date such Alternate Base Rate Loans would otherwise have been made, (i) each
Lender severally, unconditionally and irrevocably agrees that it shall, without
regard to the occurrence of any Unmatured Default or Default, purchase a
participating interest in such Swing Line Loans ("Unrefunded Swing Line Loans")
in an amount equal to the amount of Alternate Base Rate Loans which would
otherwise have been made by such Lender pursuant to paragraph (e) of this
Section 2.4 and (ii) each Unrefunded Swing Line Loan previously bearing
interest at the Alternate Swing Line Rate shall commence accruing interest at
the Alternate Base Rate. Each Lender will immediately transfer to the Agent,
in immediately available funds, the amount of its participation, and the
proceeds of such participation shall be distributed by the Agent to the Swing
Line Lender in such amount as will reduce the amount of the participating
interest retained by the Swing Line Lender in the Swing Line Loans to the
amount of the Alternate Base Rate Loans which were to have been made by the
Swing Line Lender pursuant to paragraph (e) of this Section 2.4. In the event
a Lender fails to make available to the Swing Line Lender the amount of such
Lender's participation as provided in this paragraph (f), the Swing Line Lender
shall be entitled to recover such amount on demand from such Lender together
with interest at the customary rate set by the Swing Line Lender for correction
of errors among banks for one Business Day and thereafter at the Alternate Base
Rate then in effect. All payments in respect of Unrefunded Swing Line Loans
and participations therein shall be made in accordance with Section 2.12.
1. Each Lender's obligation to make Ratable Loans pursuant to paragraph (e) of
this Section 2.4 and to purchase participating interests pursuant to paragraph
(f) of this Section 2.4 shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender or the
Borrower may have against the Swing Line Lender, the Borrower or any other
Person, as the case may be, for any reason whatsoever; (ii) the occurrence or
continuance of a Default or Unmatured Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its Subsidiaries;
(iv) any breach of this Agreement by the Borrower, any of its Subsidiaries or
any Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
A. Availability of Funds. Not later than noon (Chicago time) on each Borrowing
Date, each Lender (or in the case of a Competitive Bid Advance, each Lender
making a portion of such Advance) shall make available its Loan or Loans (other
than Swing Line Loans), in funds immediately available in Chicago to the Agent
at its address specified pursuant to Article XIII. The Agent will make the
funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
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A. Commitment Fee; Reductions in Aggregate Commitment.
1. The Borrower agrees to pay to the Agent for the ratable account of each
Lender a commitment fee equal to the Applicable Commitment Fee Percentage per
annum on the daily unborrowed portion of such Lender's Commitment (without
giving effect to any outstanding Swing Line Loans or Competitive Bid Loans)
from the date hereof to and including the Facility Termination Date applicable
to such Lender, payable in arrears on each Payment Date hereafter and on the
Facility Termination Date.
1. The Borrower may permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders, in a minimum amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, upon at least three Business
Days' written notice to the Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the Aggregate Commitment
may not be reduced below the sum of (i) the aggregate principal amount of the
outstanding Loans, plus (ii) the aggregate amount of the outstanding Facility
Letter of Credit Obligations. All accrued commitment fees shall be payable on
the effective date of any termination of the obligations of the Lenders to make
Loans hereunder.
A. Minimum Amount of Each Ratable Advance. Each Ratable Advance shall be in
the minimum amount of $5,000,000 (and in integral multiples of $1,000,000 if in
excess thereof); provided, however, that (a) any Alternate Base Rate Advance
may be in the amount of the unused Aggregate Commitment or in an amount
borrowed pursuant to Section 2.4(e) and (b) in no event shall more than six (6)
Eurodollar Advances be permitted to be outstanding at any time.
A. Optional Principal Payments. The Borrower may from time to time pay, without
penalty or premium, all outstanding Advances (other than Competitive Bid
Advances, which may not be voluntarily prepaid), or, in a minimum aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof,
any portion of the outstanding Advances (other than Competitive Bid Advances)
upon one Business Day's prior notice to the Agent in the case of an Alternate
Base Rate Advance or three Business Days' prior notice to the Agent in the case
of a Eurodollar Advance. Any prepayment of a Eurodollar Advance prior to the
last day of the applicable Eurodollar Interest Period shall be subject to the
indemnity provisions of Section 3.4.
A. Changes in Interest Rate, etc. Each Alternate Base Rate Advance shall bear
interest at the Alternate Base Rate from and including the date of such Advance
or the date on which such Advance was converted into an Alternate Base Rate
Advance to (but not including) the date on which such Alternate Base Rate
Advance is paid or converted to a Eurodollar Ratable Advance. Changes in the
rate of interest on that portion of any Advance maintained as an Alternate Base
Rate Advance will take effect simultaneously with each change in the Alternate
Base Rate. Each Eurodollar Advance, Absolute Rate Advance and Swing Line Loan
shall bear interest from and including the
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first day of the Interest Period applicable thereto to, but not including, the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar Advance, Absolute Rate Advance or Swing Line Loan. No
Interest Period may end after the Facility Termination Date.
A. Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Section 2.2.3 and 2.2.4, no Advance may be made as, converted into
or continued as a Eurodollar Ratable Advance (except with the consent of the
Agent and the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing. During the continuance of a Default the Required
Lenders may, at their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that each Eurodollar Advance, Alternate Base Rate Advance and
Swing Line Loan shall bear interest (for the remainder of the applicable
Interest Period in the case of Eurodollar Advances and Absolute Rate Advances)
at a rate per annum equal to the rate otherwise applicable plus two percent
(2%) per annum; provided, however, that such increased rate shall automatically
and without action of any kind by the Lenders become and remain applicable
until revoked by the Required Lenders in the event of a Default described in
Section 7.6 or 7.7.
A. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction or counterclaim, in immediately available funds to
the Agent at the Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, by noon (Chicago time) on the date when due and shall be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent
for the account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation specified in
a notice received by the Agent from such Lender. The Agent is hereby
authorized to charge the account of the Borrower maintained with First Chicago
for each payment of principal, interest and fees as it becomes due hereunder,
if the Agent has provided the Borrower with notice of each such payment at
least one day prior to its becoming due hereunder.
A. Notes; Telephonic Notices. Each Lender is hereby authorized to record the
principal amount of each of its Loans and each repayment on the schedule
attached to its Note; provided, however, that neither the failure to so record
nor any error in such recordation shall affect the Borrower's obligations under
such Note. The Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances, effect selections of Types of Advances, submit
Competitive Bid Quotes and to transfer funds based on telephonic notices made
by any person or persons the Agent or any Lender in good faith believes to be
acting on behalf of the Borrower. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized Officer
or another management level employee designated in writing by an Authorized
Officer to the Agent. If the written confirmation differs in any material
respect from the
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action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
A. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Alternate Base Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
an Alternate Base Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest upon each Swing Line Loan shall be
payable upon the date such Swing Line Loan is repaid and at its maturity.
Interest accrued on each Eurodollar Advance or Absolute Rate Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurodollar Advance or Absolute Rate Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each
Eurodollar Advance or Absolute Rate Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest and commitment fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (Chicago time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
A. Notification of Advances, Interest Rates, Prepayments, Commitment Reductions
and Issuance Requests. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Ratable Borrowing Notice, Conversion/Continuation Notice, Invitation for
Competitive Quotes, Issuance Request and repayment notice received by it
hereunder. The Agent will notify each Lender of the interest rate applicable
to each Eurodollar Advance promptly upon determination of such interest rate
and will give each Lender prompt notice of each change in the Alternate Base
Rate.
A. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or telex notice to
the Agent and the Borrower, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments are to be made.
A. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender, as the
case may be, notifies the Agent prior to the date on which it is scheduled to
make payment to the Agent of (a) in the case of a Lender, the proceeds of a
Loan, or (b) in the case of the Borrower, a payment of principal, interest or
fees to the Agent for the account of the Lenders, that it does not intend to
make such payment, the Agent may assume that such payment has been made. The
Agent may, but shall not be obligated to,
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make the amount of such payment available to the intended recipient in reliance
upon such assumption. If the Borrower has not in fact made such payment to the
Agent, the Lenders shall, on demand by the Agent, repay to the Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Agent until the date the Agent recovers such amount at a rate per annum equal
to the Federal Funds Effective Rate for such day. If any Lender has not in
fact made such payment to the Agent, such Lender or the Borrower shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate per annum equal to (a) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day, or (b) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
A. Taxes.
1. Any payments made by the Borrower under this Agreement shall be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes or any other tax based upon any income imposed
on the Agent or any Lender by the jurisdiction in which the Agent or such
Lender is incorporated or has its principal place of business. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Agent or any Lender hereunder, the amounts so payable to
the Agent or such Lender shall be increased to the extent necessary to yield to
the Agent or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in or pursuant to this Agreement; provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the U.S. or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
Section 2.17. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as practicable thereafter the Borrower shall send to the Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent and the Lenders for any incremental taxes, interest or penalties that
may become payable by any Agent or any Lender as a result of any such failure.
The agreements in this Section 2.17 shall survive the termination of this
Agreement and the payment of all other amounts payable hereunder.
1. At least five Business Days prior to the first date on which interest or
fees are payable hereunder for the account of any Lender, each Lender that is
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not incorporated under the laws of the United States of America, or a state
thereof, agrees that it will deliver to each of the Borrower and the Agent two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive
payments under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes. Each Lender which so delivers a Form
1001 or 4224 further undertakes to deliver to each of the Borrower and the
Agent two additional copies of such form (or a successor form) on or before the
date that such form expires (currently, three successive calendar years for
Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the
occurrence of any event requiring a change in the most recent forms so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Borrower or the Agent, in each case
certifying that such Lender 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 Lender from duly completing and
delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
B. Agent's Fees. The Borrower shall pay to the Agent those fees, in addition
to the commitment fees referenced in Section 2.6(a), in the amounts and at the
times separately agreed to between the Agent and the Borrower.
A. Facility Letters of Credit.
2.19.1. Issuance of Facility Letters of Credit. (a) From and after
the date hereof, the Issuer agrees, upon the terms and conditions set
forth in this Agreement, to issue at the request and for the account of
the Borrower, one or more Facility Letters of Credit; provided, however,
that the Issuer shall not be under any obligation to issue, and shall not
issue, any Facility Letter of Credit if (i) any order, judgment or decree
of any governmental authority or other regulatory body with jurisdiction
over the Issuer shall purport by its terms to enjoin or restrain such
Issuer from issuing such Facility Letter of Credit, or any law or
governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) from any governmental authority or other
regulatory body with jurisdiction over the Issuer shall prohibit, or
request that the Issuer refrain from, the issuance of Facility Letters of
Credit in particular or shall impose upon the Issuer with respect to any
Facility Letter of Credit any restriction or reserve or capital
requirement (for which the Issuer is not otherwise compensated) or any
unreimbursed loss, cost or expense which was not applicable, in effect
and known to the Issuer as of the date of this Agreement and which the
Issuer in good xxxxx xxxxx material to it; (ii) one or more of the
conditions to such issuance contained in Section 4.2 is not then
satisfied; or (iii) after giving effect to such issuance, the aggregate
outstanding amount of the Facility Letter of Credit Obligations would
exceed the Facility Letter of Credit Sublimit.
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(b) In no event shall: (i) the aggregate amount of the Facility
Letter of Credit Obligations at any time exceed the Facility Letter of
Credit Sublimit; (ii) the sum at any time of (A) the aggregate amount of
Facility Letter of Credit Obligations and (B) the aggregate principal
balance of outstanding Advances exceed the amount of the Aggregate
Commitment; or (iii) the expiration date of any Facility Letter of Credit
(including, without limitation, Facility Letters of Credit issued with an
automatic "evergreen" provision providing for renewal absent advance
notice by the Borrower or the Issuer), or the date for payment of any
draft presented thereunder and accepted by the Issuer, be later than the
date five (5) Business Days before the Facility Termination Date.
2.19.2 Participating Interests. Immediately upon the issuance by
the Issuer of a Facility Letter of Credit in accordance with Section
2.19.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuer, without recourse,
representation or warranty, an undivided participation interest equal to
its pro-rata share of the Aggregate Commitment of the face amount of such
Facility Letter of Credit and each draw paid by the Issuer thereunder.
Each Lender's obligation to pay its proportionate share of all draws
under the Facility Letters of Credit, absent gross negligence or willful
misconduct by the Issuer in honoring any such draw, shall be absolute,
unconditional and irrevocable and in each case shall be made without
counterclaim or set-off by such Lender.
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2.19.3 Facility Letter of Credit Reimbursement Obligations. (a) The
Borrower agrees to pay to the Issuer of a Facility Letter of Credit (i)
on each date that any amount is drawn under each Facility Letter of
Credit a sum (and interest on such sum as provided in clause (ii) below)
equal to the amount so drawn plus all other charges and expenses with
respect thereto specified in Section 2.19.6 or in the applicable
Reimbursement Agreement and (ii) interest on any and all amounts
remaining unpaid under this Section 2.19.3 until payment in full at the
Alternate Base Rate plus the margin specified in Section 2.10. The
Borrower agrees to pay to the Issuer the amount of all Facility Letter of
Credit Reimbursement Obligations owing in respect of any Facility Letter
of Credit immediately when due, under all circumstances, including,
without limitation, any of the following circumstances: (w) any lack of
validity or enforceability of this Agreement or any of the other Loan
Documents; (x) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary named
in a Facility Letter of Credit, any transferee of any Facility Letter of
Credit (or any Person for whom any such transferee may be acting), any
Lender or any other Person, whether in connection with this Agreement,
any Facility Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any Facility Letter of Credit);
(y) the validity, sufficiency or genuineness of any document which the
Issuer has determined in good faith complies on its face with the terms
of the applicable Facility Letter of Credit, even if such document should
later prove to have been forged, fraudulent, invalid or insufficient in
any respect or any statement therein shall have been untrue or inaccurate
in any respect; or (z) the surrender or impairment of any security for
the performance or observance of any of the terms hereof.
(b) Notwithstanding any provisions to the contrary in any
Reimbursement Agreement, the Borrower agrees to reimburse the Issuer for
amounts which the Issuer pays under such Facility Letter of Credit no
later than the time specified in this Agreement. If the Borrower does
not pay any such Facility Letter of Credit Reimbursement Obligations when
due, the Borrower shall be deemed to have immediately requested that the
Lenders make an Alternate Base Rate Advance under this Agreement in a
principal amount equal to such unreimbursed Facility Letter of Credit
Reimbursement Obligations. The Agent shall promptly notify the Lenders
of such deemed request and, without the necessity of compliance with the
requirements of Sections 2.2.3 and 4.2, each Lender shall make available
to the Agent its Loan in the manner prescribed for Alternate Base Rate
Advances. The proceeds of such Loans shall be paid over by the Agent to
the Issuer for the account of the Borrower in satisfaction of such
unreimbursed Facility Letter of Credit Reimbursement Obligations, which
shall thereupon be deemed satisfied by the proceeds of, and replaced by,
such Alternate Base Rate Advance.
(c) If the Issuer makes a payment on account of any Facility Letter
of Credit and is not concurrently reimbursed therefor by the Borrower and
if for any
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reason an Alternate Base Rate Advance may not be made pursuant to
paragraph (b) above, then as promptly as practical during normal banking
hours on the date of its receipt of such notice or, if not practicable on
such date, not later than noon (Chicago time) on the Business Day
immediately succeeding such date of notification, each Lender shall
deliver to the Agent for the account of the Issuer, in immediately
available funds, the purchase price for such Lender's interest in such
unreimbursed Facility Letter of Credit Obligations, which shall be an
amount equal to such Lender's pro-rata share of such payment. Each
Lender shall, upon demand by the Issuer, pay the Issuer interest on such
Lender's pro-rata share of such draw from the date of payment by the
Issuer on account of such Facility Letter of Credit until the date of
delivery of such funds to the Issuer by such Lender at a rate per annum,
computed for actual days elapsed based on a 360-day year, equal to the
Federal Funds Effective Rate for such period; provided, that such
payments shall be made by the Lenders only in the event and to the extent
that the Issuer is not reimbursed in full by the Borrower for interest on
the amount of any draw on the Facility Letters of Credit.
(d) At any time after the Issuer has made a payment on account of
any Facility Letter of Credit and has received from any other Lender such
Lender's pro-rata share of such payment, such Issuer shall, forthwith
upon its receipt of any reimbursement (in whole or in part) by the
Borrower for such payment, or of any other amount from the Borrower or
any other Person in respect of such payment (including, without
limitation, any payment of interest or penalty fees and any payment under
any collateral account agreement of the Borrower or any Loan Document but
excluding any transfer of funds from any other Lender pursuant to Section
2.19.3(b)), transfer to such other Lender such other Lender's ratable
share of such reimbursement or other amount; provided, that interest
shall accrue for the benefit of such Lender from the time such Issuer has
made a payment on account of any Facility Letter of Credit; provided,
further, that in the event that the receipt by the Issuer of such
reimbursement or other amount is found to have been a transfer in fraud
of creditors or a preferential payment under the United States Bankruptcy
Code or is otherwise required to be returned, such Lender shall promptly
return to the Issuer any portion thereof previously transferred by the
Issuer to such Lender, but without interest to the extent that interest
is not payable by the Issuer in connection therewith.
2.19.4 Procedure for Issuance. Prior to the issuance of each
Facility Letter of Credit, and as a condition of such issuance, the
Borrower shall deliver to the Issuer (with a copy to the Agent) a
Reimbursement Agreement signed by the Borrower, together with such other
documents or items as may be required pursuant to the terms thereof, and
the proposed form and content of such Facility Letter of Credit shall be
reasonably satisfactory to the Issuer. Each Facility Letter of Credit
shall be issued no earlier than two (2) Business Days after delivery of
the foregoing documents, which delivery may be by the Borrower to the
Issuer by telecopy, telex or other electronic means followed by delivery
of executed originals within five (5) days thereafter. The documents so
delivered shall be in
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compliance with the requirements set forth in Section 2.19.1(b), and
shall specify therein (i) the stated amount of the Facility Letter of
Credit requested, (ii) the effective date of issuance of such requested
Facility Letter of Credit, which shall be a Business Day, (iii) the date
on which such requested Facility Letter of Credit is to expire, which
shall be a Business Day prior to the date five (5) Business Days prior to
the Facility Termination Date, (iv) the entity for whose benefit the
requested Facility Letter of Credit is to be issued, which shall be the
Borrower or a Subsidiary, and (v) the aggregate amount of Facility Letter
of Credit Obligations which are outstanding and which will be outstanding
after giving effect to the requested Facility Letter of Credit issuance.
The delivery of the foregoing documents and information shall constitute
an "Issuance Request" for purposes of this Agreement. Subject to the
terms and conditions of Section 2.19.1 and provided that the applicable
conditions set forth in Section 4.2 hereof have been satisfied, the
Issuer shall, on the requested date, issue a Facility Letter of Credit on
behalf of the Borrower in accordance with the Issuer's usual and
customary business practices. In addition, any amendment of an existing
Facility Letter of Credit shall be deemed to be an issuance of a new
Facility Letter of Credit and shall be subject to the requirements set
forth above. The Issuer shall give the Agent prompt written notice of
the issuance of any Facility Letter of Credit.
2.19.5 Nature of the Lenders' Obligations. (a) As between the
Borrower and the Lenders, the Borrower assumes all risks of the acts and
omissions of, or misuse of the Facility Letters of Credit by, the
respective beneficiaries of the Facility Letters of Credit. In
furtherance and not in limitation of the foregoing, the Lenders shall not
be responsible for (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of a Facility Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of a Facility Letter of Credit to comply fully
with conditions required to be satisfied by any Person other than the
Issuer in order to draw upon such Facility Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; (v) errors in
the interpretation of technical terms; (vi) the misapplication by the
beneficiary of a Facility Letter of Credit of the proceeds of any drawing
under such Facility Letter of Credit; or (vii) any consequences arising
from causes beyond control of the Issuer.
(b) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuer under or in connection with the Facility Letters of Credit or
any related certificates, if taken or omitted in good faith, shall not
put the Agent or any Lender under any
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resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to the Issuer or any such Person.
2.19.6 Facility Letter of Credit Fees. The Borrower hereby agrees
to pay to the Agent for the account of the Issuer or the Lenders, as
applicable, letter of credit fees with respect to each Facility Letter of
Credit from and including the date of issuance thereof until the date
such Facility Letter of Credit is fully drawn, cancelled or expired, (a)
for the account of the Issuer, computed at such rate as may be agreed
upon between the Issuer and the Borrower, on the aggregate initial face
amount of such Facility Letter of Credit payable on the date of issuance,
and (b) for the ratable account of the Lenders, equal to (i) in the case
of Commercial Letters of Credit, 50% of the Applicable Eurodollar Margin
times the aggregate initial face amount of such Commercial Letter of
Credit, payable upon the date of issuance thereof, and (ii) in the case
of Standby Letters of Credit, the Applicable Eurodollar Margin times the
aggregate amount from time to time available to be drawn on such Standby
Facility Letter of Credit, calculated with respect to actual days elapsed
on the basis of a 360-day year and payable quarterly in arrears on each
Payment Date in each year and upon the expiration, cancellation or
utilization in full of such Facility Letter of Credit. In addition to
the foregoing, the Borrower agrees to pay the Issuer any other fees
customarily charged by it in respect of Letters of Credit issued by it.
A. Extension of Facility Termination Date. The Borrower may request an
extension of the Facility Termination Date by submitting a request for an
extension to the Agent (an "Extension Request") no more than 60 days but no
less than 40 days prior to the then effective Facility Termination Date. The
Extension Request must specify the new Facility Termination Date requested by
the Borrower and the date (which must be at least 30 days after the Extension
Request is delivered to the Agent) as of which the Lenders must respond to the
Extension Request (the "Extension Date"). The new Facility Termination Date
shall be no more than 364 days after the Extension Date, including the
Extension Date as one of the days in the calculation of the days elapsed.
Promptly upon receipt of an Extension Request, the Agent shall notify each
Lender of the contents thereof and shall request each Lender to approve the
Extension Request. Each Lender may, in its sole discretion, elect to approve
or deny such Extension Request. Failure of a Lender to respond to an Extension
Request by the Extension Date shall be deemed a refusal to approve such
Extension Request. Each Lender approving the Extension Request shall deliver
its written consent no later than the Extension Date. Any consent delivered by
a Lender to the Agent prior to the Extension Date may be revoked prior to the
Extension Date by the Lender giving written notice of such revocation to the
Agent before the Extension Date. If the consent of each of the Lenders is
received by the Agent and remains in effect on the Extension Date, the Facility
Termination Date specified in the Extension Request shall become effective on
the Extension Date and the Agent shall promptly notify the Borrower and each
Lender of the new Facility Termination Date. Otherwise, the then effective
Facility Termination Date shall be unchanged. In no event shall the Borrower
be entitled to seek or obtain more than two extensions pursuant to this Section
2.20.
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I. ARTICLE
CHANGE IN CIRCUMSTANCES
A. Yield Protection. If, after the date hereof, the adoption of or any change
in any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any
interpretation thereof, or the compliance of any Lender therewith,
1. subjects any Lender or any applicable Lending Installation to any tax, duty,
charge or withholding on or from payments due from the Borrower (excluding
taxation of the overall net income of any Lender or applicable Lending
Installation imposed by the jurisdiction in which such Lender or Lending
Installation is incorporated or has its principal place of business), or
changes (excluding increases in the income tax rates imposed by the
jurisdiction in which the applicable Lender or Lending Installation is
incorporated or has its principal place of business) the basis of taxation of
principal, interest or any other payments to any Lender or Lending Installation
in respect of its Loans, its interest in the Facility Letters of Credit or
other amounts due it hereunder, or
1. imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender or any applicable
Lending Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or
1. imposes any other condition the result of which is to increase the cost to
any Lender or any applicable Lending Installation of making, funding or
maintaining Loans or issuing Facility Letters of Credit or reduces any amount
receivable by any Lender or any applicable Lending Installation in connection
with any Loans or Facility Letters of Credit, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference to
the amount of Loans held, Facility Letters of Credit issued or participated in
or interest received by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or resulting in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Loans, its interest in the Facility Letters of Credit and
its Commitment.
A. Changes in Capital Adequacy Regulations. If a Lender determines the amount
of capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is
increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall
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pay such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans, its interest in the
Facility Letters of Credit or its obligation to make Loans or participate in or
issue Facility Letters of Credit hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (a) any change after
the date of this Agreement in the Risk-Based Capital Guidelines, or (b) any
adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (a) the risk-based capital guidelines in effect in
the United States on the date of this Agreement and (b) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices entitled "International Convergence of
Capital Measurements and Capital Standards" and any amendments to such
regulations adopted prior to the date of this Agreement.
A. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (a) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available, or (b) the interest rate applicable to a Type of Advance does not
accurately or fairly reflect the cost of making or maintaining such Advance,
then the Agent shall suspend the availability of the affected Type of Advance
until such circumstance no longer exists and require any Eurodollar Advances of
the affected Type to be repaid.
A. Funding Indemnification. If any payment of a Eurodollar Advance or Swing
Line Advance bearing interest at the Alternate Swing Line Rate occurs on a date
which is not the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or any such Advance is not made on the
date specified by the Borrower for any reason other than default by the
Lenders, the Borrower will indemnify the Agent and each Lender for any loss or
cost incurred by it resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Advance.
A. Lender Statements; Survival of Indemnity. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of Advance
under Section 3.3, so long as such designation is not disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Agent) as to the amount due, if any, under Section
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail
the calculations upon which such Lender determined such amount and shall be
final, conclusive and binding on the Borrower in the
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absence of manifest error. Determination of amounts payable under such
Sections in connection with a Eurodollar Loan shall be calculated as though
each Lender funded its Eurodollar Loan through the purchase of a deposit of the
type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by
the Borrower of the written statement. The obligations of the Borrower under
Sections 3.1, 3.2 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
I. ARTICLE
CONDITIONS PRECEDENT
A. Initial Loans and Facility Letters of Credit. The Lenders shall not be
required to make the initial Advance hereunder and the Issuer shall not be
required to issue any Facility Letter of Credit hereunder unless the Borrower
has furnished the following to the Agent with sufficient copies for the Lenders
and the other conditions set forth below have been satisfied, in each case on
or before March 3, 1997:
1. Charter Documents; Good Standing Certificates. Copies of the certificate of
incorporation of the Borrower, together with all amendments and other
modifications thereto (including the Borrower's name change from New Ralcorp
Holdings, Inc.), certified by the appropriate governmental officer in its
jurisdiction of incorporation, together with a good standing certificate issued
by the Secretary of State of the jurisdiction of its incorporation and such
other jurisdictions as shall be requested by the Agent.
1. By-Laws and Resolutions. Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of its by-laws and of its Board of Directors'
resolutions authorizing the execution, delivery and performance of the Loan
Documents to which the Borrower is a party.
1. Secretary's Certificate. An incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower, which shall identify by name
and title and bear the signature of the officers of the Borrower authorized to
sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Borrower.
1. Officer's Certificate. A certificate, dated the date hereof, signed by an
Authorized Officer of the Borrower, in form and substance satisfactory to the
Agent, to the effect that: (i) on the initial Borrowing Date (both before and
after giving effect to the making of any Loans (or issuance of any Facility
Letters of Credit hereunder) no Default or Unmatured Default has occurred and
is continuing; (ii) no
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injunction or temporary restraining order which would prohibit the making of
any Loans (or issuance of any Facility Letters of Credit) or other litigation
which could reasonably be expected to have a Material Adverse Effect is pending
or, to the best of such Person's knowledge, threatened; (iii) the Divestitures
have been consummated on terms satisfactory to the Lenders; (iv) each of the
representations and warranties set forth in Article V of this Agreement is true
and correct on and as of the initial Borrowing Date; and (viii) since December
31, 1996, no event or change has occurred that has caused or evidences a
Material Adverse Effect.
1. Legal Opinions. A written opinion of X. X. Xxxxxxxx, General Counsel for
the Borrower and the Guarantors, addressed to the Agent and the Lenders in form
and substance acceptable to the Agent and its counsel.
1. Notes. Notes payable to the order of each of the Lenders duly executed by
the Borrower.
1. Loan Documents. Executed originals of this Agreement and each of the Loan
Documents, which shall be in full force and effect, together with all
schedules, exhibits, certificates, instruments, opinions, documents and
financial statements required to be delivered pursuant hereto and thereto.
1. Letters of Direction. Written money transfer instructions with respect to
Advances in form and substance acceptable to the Agent and its counsel
addressed to the Agent and signed by an Authorized Officer, together with such
other related money transfer authorizations as the Agent may have reasonably
requested.
1. Financial Statements. The Agent and the Required Lenders shall have
received (i) the Pro Forma which must not be materially less favorable, in the
Agent's and Required Lenders' reasonable judgment, than the projections
previously provided to them and which must demonstrate, in their reasonable
judgment, together with all other information then available to the Agent and
the Required Lenders, that the Borrower and its Subsidiaries can repay their
debts and satisfy their respective other obligations as and when due, and can
comply with the financial covenants set forth herein and (ii) such information
as the Agent and the Required Lenders could reasonably request to confirm the
tax, legal and business assumptions made in the Pro Forma.
1. Guarantor Charter Documents; Good Standing Certificates. Copies of the
articles or certificates of incorporation of each Guarantor, together with all
amendments thereto, both certified by the Secretary or Assistant Secretary of
such Guarantor, together with a good standing certificate issued by the
Secretary of State of the jurisdiction of its incorporation and such other
jurisdictions as shall be requested by the Agent.
1. Guarantor By-Laws and Resolutions. Copies, certified by the Secretary or
Assistant Secretary of each Guarantor, of its by-laws and Board of Directors'
resolutions of such Guarantor (and resolutions of other bodies, if any are
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deemed necessary by counsel for the Agent) authorizing the execution, delivery
and performance of the Loan Documents to which each such Guarantor is a party.
1. Guarantor Secretary's Certificate. An incumbency certificate, executed by
the Secretary or Assistant Secretary of each Guarantor, which shall identify by
name and title and bear the signature of the officers of such Guarantor
authorized to sign the Loan Documents upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in writing by
the Borrower.
1. Lien Searches. Copies of searches of financing statements filed under the
Uniform Commercial Code, together with tax lien and judgment searches with
respect to the assets of the Borrower and the Guarantors, in both cases in such
jurisdictions as the Agent may request.
1. Other. Such other documents as the Agent, any Lender or their counsel may
have reasonably requested.
A. Each Future Advance and Facility Letter of Credit. The Lenders shall not be
required to make any Advance and the Issuer shall not be obligated to issue any
future Facility Letter of Credit unless on the applicable Borrowing Date:
1. There exists no Default or Unmatured Default and none would result from such
Advance or issuance of such Facility Letter of Credit;
1. The representations and warranties contained in Article V are true and
correct as of such Borrowing Date;
1. A Borrowing Notice or Issuance Request, as applicable, shall have been
properly submitted; and
1. All legal matters incident to the making of such Advance or issuance of such
Facility Letter of Credit shall be satisfactory to the Lenders and their
counsel.
Each Ratable Borrowing Notice and Competitive Bid Quote Request with
respect to each such Advance and each Issuance Request with respect to each
such Facility Letter of Credit shall constitute a representation and warranty
by the Borrower that the conditions contained in Section 4.2 have been
satisfied. Any Lender may require a duly completed compliance certificate in
substantially the form of Exhibit G hereto as a condition to making an Advance
or issuing a Facility Letter of Credit.
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I. ARTICLE
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Lenders that:
A. Corporate Existence and Standing. Each of the Borrower and each Material
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation and is
duly qualified and in good standing as a foreign corporation and is duly
authorized to conduct its business in each jurisdiction in which its business
is conducted or proposed to be conducted except where the failure to be so
qualified or authorized could not reasonably be expected to have a Material
Adverse Effect.
A. Authorization and Validity. The Borrower and each Guarantor have all
requisite power and authority (corporate and otherwise) and legal right to
execute and deliver (or file, as the case may be) each of the Loan Documents to
which it is a party and to perform its obligations thereunder. The execution
and delivery (or filing, as the case may be) by the Borrower and each Guarantor
of the Loan Documents to which it is a party and the performance of their
respective obligations thereunder have been duly authorized by proper corporate
proceedings and the Loan Documents constitute legal, valid and binding
obligations of the Borrower or such Guarantor, as applicable, enforceable
against the Borrower or such Guarantor, as applicable, in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity.
A. Compliance with Laws and Contracts. The Borrower and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective properties,
except where the failure to so comply could not reasonably be expected to have
a Material Adverse Effect. Neither the execution and delivery by the Borrower
or any Guarantor of the Loan Documents to which it is a party, the application
of the proceeds of the Loans and the Facility Letters of Credit, the
consummation of any transaction contemplated in the Loan Documents, nor
compliance with the provisions of the Loan Documents will, or at the relevant
time did, (a) violate any law, rule, regulation (including Regulations G, T, U
and X), order, writ, judgment, injunction, decree or award binding on the
Borrower or any Subsidiary or the Borrower's or any Subsidiary's charter,
articles or certificate of incorporation or by-laws, (b) violate the provisions
of or require the approval or consent of any party to any indenture, instrument
or agreement to which the Borrower or any Subsidiary is a party or is subject,
or by which it, or its property, is bound, or conflict with or constitute a
default thereunder, or result in the creation or imposition of any Lien (other
than Liens permitted by, the Loan Documents) in, of or on the property of the
Borrower or any Subsidiary
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pursuant to the terms of any such indenture, instrument or agreement, or (c)
require any consent of the stockholders of any Person.
A. Governmental Consents. No order, consent, approval, qualification, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of, Governmental Authority, or any
subdivision thereof, any securities exchange or other Person is or at the
relevant time was required to authorize, or is or at the relevant time was
required in connection with the execution, delivery, consummation or
performance of, or the legality, validity, binding effect or enforceability of,
any of the Loan Documents, the application of the proceeds of the Loans or the
Facility Letters of Credit or any other transaction contemplated in the Loan
Documents.
A. Financial Statements. The Borrower has heretofore furnished to each of the
Lenders (a) the September 30, 1996 audited consolidated financial statements of
Old Ralcorp and its Subsidiaries, and (b) the unaudited consolidated financial
statements of Old Ralcorp and its Subsidiaries through December 31, 1996
(collectively, the "Financial Statements"). The pro forma balance sheet and
related profit and loss statement (the "Pro Forma") of the Borrower and its
Subsidiaries on a consolidated basis as of December 31, 1996 is attached hereto
as Schedule 5.5. As of the date of this Agreement, the Pro Forma is complete
and accurate and fairly represents in all material respects the Borrower's and
the Subsidiaries' assets, liabilities, financial condition and results of
operations on a consolidated basis in accordance with Agreement Accounting
Principles, consistently applied, and taking into account the Divestitures.
Each of the Financial Statements was prepared in accordance with Agreement
Accounting Principles and fairly presents the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations for the respective periods then ended
(except, in the case of such unaudited statements, for normal year-end audit
adjustments).
A. Material Adverse Change. Since December 31, 1996, there has been no change
from that reflected in the Pro Forma in the business, Property, condition
(financial or otherwise) or results of operations of the Borrower and its
Subsidiaries taken as a whole which could reasonably be expected to have a
Material Adverse Effect.
A. Taxes. The Borrower and its Subsidiaries have filed or caused to be filed
in correct form all United States federal and applicable foreign, state and
local tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any Subsidiary, except such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles and as to which no
Lien exists. No tax liens have been filed and no claims are being asserted
with respect to any such taxes which could reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are in accordance with Agreement Accounting Principles.
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A. Litigation and Contingent Obligations. There is no litigation, arbitration,
proceeding, inquiry or governmental investigation (including, without
limitation, by the Federal Trade Commission) pending or, to the knowledge of
any of their officers, threatened against or affecting the Borrower or any
Subsidiary or any of their respective Properties which could reasonably be
expected to have a Material Adverse Effect or to prevent, enjoin or unduly
delay the making of the Loans or the issuance of Facility Letters of Credit
under this Agreement. Neither the Borrower nor any Subsidiary has any material
Contingent Obligations except as set forth on Schedule 5.8.
A. Subsidiaries and Capitalization. Schedule 5.9 hereto contains an accurate
list of all of the existing Subsidiaries as of the date of this Agreement after
giving effect to the Divestitures, setting forth their respective jurisdictions
of incorporation and the percentage of their capital stock owned by the
Borrower or other Subsidiaries. All of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable, and are free and clear of all Liens, other
than the Liens created by the Loan Documents. No authorized but unissued or
treasury shares of capital stock of or any Subsidiary are subject to any
option, warrant, right to call or commitment of any kind or character. Except
as set forth on Schedule 5.9, neither the Borrower nor any Subsidiary has any
outstanding stock or securities convertible into or exchangeable for any shares
of its capital stock, or any right issued to any Person (either preemptive or
other) to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to any of its capital
stock or any stock or securities convertible into or exchangeable for any of
its capital stock other than as expressly set forth in the certificate or
articles of incorporation of the Borrower or such Subsidiary. Neither the
Borrower nor any Subsidiary is subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
capital stock or any convertible securities, rights or options of the type
described in the preceding sentence except as otherwise set forth on Schedule
5.9. Except as set forth on Schedule 5.9, as of the date hereof the Borrower
does not own or hold, directly or indirectly, any capital stock or equity
security of, or any equity or partnership interest in any Person other than
such Subsidiaries and Vail Resorts, Inc.
A. ERISA. Except as disclosed on Schedule 5.10, neither the Borrower nor any
other member of the Controlled Group maintains any Single Employer Plans, and
no Single Employer Plan has any Unfunded Liability. Neither the Borrower nor
any other member of the Controlled Group maintains, or is obligated to
contribute to, any Multiemployer Plan or has incurred, or is reasonably
expected to incur, any withdrawal liability to any Multiemployer Plan. Each
Plan complies in all respects with all applicable requirements of law and
regulations, except where the failure to so comply could not reasonably be
expected to cause the relevant Plan to become disqualified under the Code.
Neither the Borrower nor any member of the Controlled Group has, with respect
to any Plan, failed to make any contribution or pay any amount required under
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Section 412 of the Code or Section 302 of ERISA or the terms of such Plan.
There are no pending or, to the knowledge of the Borrower, threatened claims,
actions, investigations or lawsuits against any Plan, any fiduciary thereof, or
the Borrower or any member of the Controlled Group with respect to a Plan which
could reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any member of the Controlled Group has engaged in any prohibited
transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in
connection with any Plan which would subject such Person to any material
liability. Within the last five years neither the Borrower nor any member of
the Controlled Group has engaged in a transaction which resulted in a Single
Employer Plan with an Unfunded Liability being transferred out of the
Controlled Group. No Termination Event has occurred or is reasonably expected
to occur with respect to any Plan which is subject to Title IV of ERISA.
A. Defaults. No Default or Unmatured Default has occurred and is continuing.
A. Federal Reserve Regulations. Neither the Borrower nor any Subsidiary is
engaged, directly or indirectly, principally, or as one of its important
activities, in the business of extending, or arranging for the extension of,
credit for the purpose of purchasing or carrying Margin Stock. Neither the
making of any Advance or issuance of any Facility Letters of Credit hereunder,
the use of the proceeds thereof, will violate or be inconsistent with the
provisions of Regulation G, Regulation T, Regulation U or Regulation X.
Following the application of the proceeds of the Loans, less than 25% of the
value (as determined by any reasonable method) of the assets of the Borrower
and its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder taken as a whole have been, and will continue to
be, represented by Margin Stock.
A. Investment Company; Public Utility Holding Company Act. Neither the
Borrower nor any Subsidiary is, or after giving effect to any Advance will be,
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any Subsidiary is a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
A. Certain Fees. Other than as disclosed on Schedule 5.14, no broker's or
finder's fee or commission was, is or will be payable by the Borrower or any
Subsidiary with respect to the Divestitures or any of the transactions
contemplated by this Agreement. The Borrower hereby agrees to indemnify the
Agent and the Lenders against and agrees that it will hold each of them
harmless from any claim, demand or liability for broker's or finder's fees or
commissions alleged to have been incurred by the Borrower in connection with
any of the transactions contemplated by this Agreement and any expenses
(including, without limitation, attorneys' fees and time charges of attorneys
for the Agent or any Lender, which attorneys may be employees of the Agent or
any Lender)
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arising in connection with any such claim, demand or liability. No other
similar fee or commissions will be payable by the Borrower or any Subsidiary
for any other services rendered to the Borrower or any Subsidiary ancillary to
the Divestitures or any of the transactions.
A. Solvency. As of the date hereof, after giving effect to the consummation of
the transactions contemplated by the Loan Documents and the Divestitures and
the payment of all fees, costs and expenses payable by the Borrower or its
Subsidiaries with respect to the transactions contemplated by the Loan
Documents and the Transaction Documents, each of the Borrower and each
Guarantor is Solvent.
A. Ownership of Properties. Except as set forth on Schedule 5.16 hereto, the
Borrower and its Subsidiaries have a subsisting leasehold interest in, or good
and marketable title, free of all Liens, other than those permitted by Section
6.17 or by any of the other Loan Documents, to all of the properties and assets
reflected in the Financial Statements as being owned by it, except for assets
sold, transferred or otherwise disposed of in the Divestitures or in the
ordinary course of business since the date thereof. To the knowledge of the
Borrower, there are no actual, threatened or alleged defaults with respect to
any leases of real property under which the Borrower or any Subsidiary is
lessee or lessor which could reasonably be expected to have a Material Adverse
Effect. The Borrower and its Subsidiaries own or possess rights to use all
material licenses, patents, patent applications, copyrights, service marks,
trademarks and trade names necessary to continue to conduct their business as
heretofore conducted, and no such license, patent or trademark has been
declared invalid, been limited by order of any court or by agreement or is the
subject of any infringement, interference or similar proceeding or challenge,
except for proceedings and challenges which could not reasonably be expected to
have a Material Adverse Effect.
A. Indebtedness. Attached hereto as Schedule 5.17 is a complete and correct
list of all Indebtedness of the Borrower and its Subsidiaries outstanding on
the date of this Agreement (other than Indebtedness in a principal amount not
exceeding $100,000 for a single item of Indebtedness and $500,000 in the
aggregate for all such Indebtedness listed), showing the aggregate principal
amount which was outstanding on such date.
A. Subordinated Indebtedness. The principal of and interest on the Notes and
all other Obligations will constitute "senior debt" as that or any similar term
is or may be used in any other instrument evidencing or applicable to any
Subordinated Indebtedness of the Borrower.
A. Employee Controversies. There are no strikes, work stoppages or
controversies pending or threatened between the Borrower or any Subsidiary and
any of its employees, other than strikes, work stoppages or controversies
arising in the ordinary course of business, which, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
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A. Material Agreements. Neither the Borrower nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect or which restricts or imposes conditions upon the ability of the
Borrower or any Subsidiary to (a) pay dividends or make other distributions on
its capital stock (b) make loans or advances to the Borrower, (c) repay loans
or advances from Borrower or (d) grant Liens to the Agent to secure the
Obligations. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
A. Divestiture Documents. The Borrower has delivered to each of the Lenders
true, complete and correct copies of the documents pursuant to which the
Divestitures were consummated (including all schedules, exhibits, annexes,
amendments, supplements, modifications, and all other material documents
delivered pursuant thereto or in connection therewith). Each of the
representations and warranties of the Borrower and its Subsidiaries therein is
true and correct in all material aspects as of the date of the closing of the
Divestitures. The Divestitures were consummated in accordance with applicable
laws and regulations.
A. Environmental Laws. The Borrower and its Material Subsidiaries each conduct
in the ordinary course of business a review of the effects of then existing
Environmental Laws and then existing Environmental Claims on its business,
condition (financial and other), results of operations and Property, and as a
result thereof the Borrower and its Material Subsidiaries have reasonably
concluded that the application of such Environmental Laws and the existence of
such Environmental Claims, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
A. Insurance. The Borrower and its Subsidiaries maintain with financially
sound and reputable insurance companies insurance on their Property in such
amounts and covering such risks as is consistent with sound business practice.
A. Disclosure. None of the (a) information, exhibits or reports furnished or
to be furnished by the Borrower or any Subsidiary to the Agent or to any Lender
in connection with the negotiation of the Loan Documents, or (b)
representations or warranties of the Borrower or any Subsidiary contained in
this Agreement, the other Loan Documents or any certificate or other written
information furnished to the Agent or the Lenders by or on behalf of the
Borrower or any Subsidiary pursuant to a request from the Agent or the Lenders
permitted hereunder and for use in connection with the transactions
contemplated by this Agreement, contained, contains or will contain any untrue
statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. The pro
forma financial information contained in such materials is based upon good
faith estimates and assumptions believed by the Borrower to be reasonable at
the time made. There is no fact known to the Borrower (other than matters of a
general economic nature) that has had or
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could reasonably be expected to have a Material Adverse Effect and that has not
been disclosed herein or in such other documents, certificates and other
written information furnished to the Lenders for use in connection with the
transactions contemplated by this Agreement or the Form 10.
I. ARTICLE
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
A. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, consistently applied, and
furnish to the Lenders:
1. As soon as practicable and in any event within 95 days after the close of
each of its Fiscal Years, an unqualified audit report certified by independent
certified public accountants, acceptable to the Lenders, prepared in accordance
with Agreement Accounting Principles on a consolidated and consolidating basis
(consolidating statements need not be certified by such accountants) for itself
and its Subsidiaries, including balance sheets as of the end of such period and
related statements of income, retained earnings and cash flows accompanied by a
certificate of said accountants that, in the course of the examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the nature
and status thereof.
1. As soon as practicable and in any event within 50 days after the close of
the first three Fiscal Quarters of each of its Fiscal Years, for itself and its
Subsidiaries, consolidated and consolidating unaudited balance sheets as at the
close of each such period and consolidated and consolidating statements of
income, retained earnings and cash flows for the period from the beginning of
such Fiscal Year to the end of such quarter, all certified by its chief
financial officer, controller or treasurer.
1. As soon as available, but in any event not later than the last Business Day
in November of each year, a copy of the plan and forecast (including a
projected consolidated and consolidating balance sheet, income statement and
funds flow statement) of the Borrower and its Subsidiaries for the next Fiscal
Year.
1. Together with the financial statements required by clauses (a) and (b)
above, a compliance certificate in substantially the form of Exhibit G hereto
signed by its chief financial officer, controller or treasurer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
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1. Within 270 days after the close of each Fiscal Year, a statement of the
Unfunded Liabilities of each Single Employer Plan, certified as correct by an
actuary enrolled under ERISA.
1. As soon as possible and in any event within 10 days after the Borrower knows
that any Termination Event has occurred with respect to any Plan, a statement,
signed by the chief financial officer, treasurer or controller of the Borrower,
describing said Termination Event and the action which the Borrower proposes to
take with respect thereto.
1. As soon as possible and in any event within 10 days after the Borrower
learns thereof, notice of the assertion or commencement of any claims, action,
suit or proceeding against or affecting the Company or any Subsidiary which
could reasonably be expected to have a Material Adverse Effect.
1. Promptly upon the furnishing thereof to the shareholders of the Borrower,
copies of all financial statements, reports and proxy statements so furnished.
1. Promptly upon the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission.
1. Such other information (including non-financial information) as the Agent or
any Lender may from time to time reasonably request.
A. Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use
the proceeds of the Advances to meet the general corporate needs of the
Borrower and its Subsidiaries, including the making of Investments and
Purchases permitted hereunder; provided, however, that in no event may more
than $10,000,000 in the aggregate of Loan Proceeds be used to make stock
redemptions or repurchases. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances or any Facility Letter
of Credit to purchase or carry any "margin stock" (as defined in Regulation U)
or to finance the Purchase of any Person which has not been approved and
recommended by the board of directors (or functional equivalent thereof) of
such Person.
A. Notice of Default. The Borrower will give prompt notice in writing to the
Lenders of the occurrence of (a) any Default or Unmatured Default and (b) of
any other event or development, financial or other, relating specifically to
the Borrower or any of its Subsidiaries (and not of a general economic or
political nature) which could reasonably be expected to have a Material Adverse
Effect.
A. Conduct of Business. The Borrower will, and will cause each Subsidiary to,
carry on and conduct its business in substantially the same manner and in
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substantially the same fields of enterprise as it is presently conducted and to
do all things necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation in its jurisdiction of incorporation
and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to
maintain such authority could not reasonably be expected to have a Material
Adverse Effect.
A. Taxes. The Borrower will, and will cause each Subsidiary to, timely file
complete and correct United States federal and applicable foreign, state and
local tax returns required by applicable law and pay when due all material
taxes, assessments and governmental charges and levies upon it or its income,
profits or Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
A. Insurance. The Borrower will, and will cause each Subsidiary to, maintain
with financially sound and reputable insurance companies insurance on all their
Property in such amounts and covering such risks as is consistent with sound
business practice for similarly situated businesses in the industries in which
the Borrower and its Subsidiaries operate, and the Borrower will furnish to the
Agent and any Lender upon request full information as to the insurance carried.
A. Compliance with Laws. The Borrower will, and will cause each Subsidiary to,
comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, the failure to
comply with which could reasonably be expected to have a Material Adverse
Effect.
A. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
A. Inspection. The Borrower will, and will cause each Subsidiary to, permit
the Agent and the Lenders, by their respective representatives and agents, to
inspect any of the Property, corporate books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and
to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as the Lenders may designate. The
Borrower will keep or cause to be kept, and cause each Subsidiary to keep or
cause to be kept, appropriate records and books of account in which complete
entries are to be made reflecting its and their business and financial
transactions, such entries to be made in accordance with Agreement Accounting
Principles consistently applied.
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A. Capital Stock and Dividends. The Borrower will not, nor will it permit any
Subsidiary to, (a) issue or have outstanding any preferred stock, other than
preferred stock not having mandatory redemption, retirement and other
repurchase dates commencing less than 91 days after the Facility Termination
Date then in effect or (b) declare or pay any dividends or make any
distributions on its capital stock (other than dividends payable in its own
capital stock) or redeem, repurchase or otherwise acquire or retire any of its
capital stock or any options or other rights in respect thereof at any time
outstanding, except that (i) any Subsidiary may declare and pay dividends or
make distributions to the Borrower or to a Guarantor and (ii) so long as no
Default or Unmatured Default exists before or after giving effect to the
declaration or payment of such dividends or repurchase or redemption of such
stock, the Borrower may repurchase or redeem its capital stock or declare and,
within 45 days thereafter, pay dividends on its capital stock in an amount
which, when added to the amount of all prior dividends and stock repurchases or
redemptions does not exceed 10% of Net Worth at such time (before giving effect
to such dividend, repurchase or redemption).
A. Indebtedness. The Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist any Indebtedness, except:
1. the Loans;
1. Indebtedness existing on the date hereof and described in Schedule 5.17;
1. Contingent Obligations permitted by Section 6.16;
1. outstanding borrowings under working capital facilities (other than pursuant
to this Agreement) having individual maturities of not more than 30 days, which
Indebtedness, when considered together with the Obligations outstanding
hereunder, at no time exceeds $50,000,000 in aggregate principal amount;
1. Rate-Hedging Obligations incurred in the ordinary course of business;
1. other Indebtedness at no time exceeding $10,000,000 in aggregate principal
amount.
A. Merger. The Borrower will not, nor will it permit any Subsidiary to, merge
or consolidate with or into any other Person, except that (a) a Wholly-Owned
Subsidiary may merge into the Borrower or any Wholly-Owned Subsidiary of the
Borrower, (b) the Borrower or any Subsidiary may merge or consolidate with any
other Person so long as the Borrower or such Subsidiary is the continuing or
surviving corporation and, prior to and after giving effect to such merger or
consolidation, no Default or Unmatured Default shall exist, and (c) any
Subsidiary may enter into a merger or consolidation as a means of effecting a
disposition permitted by Section 6.13.
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A. Sale of Assets. The Borrower will not, nor will it permit any Subsidiary
to, lease, sell, transfer or otherwise dispose of its Property to any other
Person except for (a) sales of inventory or unused or obsolete equipment in the
ordinary course of business, and (b) leases, sales, transfers or other
dispositions of its Property that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold, transferred or otherwise
disposed of (other than inventory or unused or obsolete equipment sold in the
ordinary course of business) as permitted by this Section 6.13 since the date
hereof, do not constitute a Substantial Portion of the Property of Borrower
and its Subsidiaries.
A. Sale of Accounts. The Borrower will not, nor will it permit any Subsidiary
to, sell or otherwise dispose of any notes receivable or accounts receivable,
with or without recourse.
A. Investments and Purchases. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments (including, without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Purchases, except:
1. Short-term obligations of, or fully guaranteed by, the United States of
America;
1. Commercial paper rated A-1 or better by S&P or P-1 or better by Xxxxx'x;
1. Demand deposit and money market bank accounts maintained in the ordinary
course of business with commercial banks which are members of the Federal
Deposit Insurance Corporation;
1. Certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) rated B or better by Thomson, A or better by S&P
or A2 or better by Xxxxx'x;
1. Repurchase agreements with commercial banks (whether domestic or foreign)
rated B or better by Thomson, A or better by S&P or A2 or better by Xxxxx'x, so
long at least 102% of the principal amount of each repurchase agreement is
collateralized by obligations of, or fully guaranteed by, the United States of
America or by commercial paper rated A-1 or better by S&P or P-1 or better by
Xxxxx'x;
1. Loan participations and master notes with corporations rated A-1 or better
by S&P or P-1 or better by Xxxxx'x and with commercial banks rated B or better
by Thomson, A or better by S&P or A2 or better by Xxxxx'x;
1. Money market preferred stock accounts in corporations rated A or better by
S&P or A2 or better by Xxxxx'x or in other corporations so long as
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such Investments are secured by Letters of Credit issued by commercial banks
rated B or better by Thomson, A or better by S&P or A2 or better by Xxxxx'x;
1. Existing Investments in Subsidiaries and additional Investments in
Guarantors;
1. Other Investments in existence on the date hereof and described in Schedule
6.15 hereto;
1. Additional equity Investments in Vail Resorts, Inc. necessary to permit the
Borrower to retain equity accounting treatment for such Investment; and
1. Purchases not exceeding $50,000,000 in the case of any single Purchase or
series of related Purchases provided that there shall exist no Default or
Unmatured Default either immediately before or immediately after giving effect
to any such Purchase.
A. Contingent Obligations. The Borrower will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations
of a Subsidiary), except (a) by endorsement of instruments for deposit or
collection in the ordinary course of business, (b) the Subsidiary Guaranty and
(c) the Xxxxxxx Obligations.
A. Liens. The Borrower will not, nor will it permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Borrower or
any of its Subsidiaries, except:
1. Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on its books;
2. Liens imposed by law, such as carriers', warehousemen's and mechanics' liens
and other similar liens arising in the ordinary course of business which secure
the payment of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
1. Liens arising out of pledges or deposits under worker's compensation laws,
unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
1. Liens arising out of good faith deposits in connection with or to secure
performance of statutory obligations, surety and appeal bonds, government
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contracts, leases otherwise permitted hereunder, performance and return of
money bonds and other similar obligations incurred in the ordinary course of
business;
1. Easements, minor defects or irregularities in title, building restrictions
and such other encumbrances or charges against real property, all of which as
are of a nature generally existing with respect to properties of a similar
character and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower or the
Subsidiaries;
1. Liens existing on the date hereof and described in Schedule 6.17 hereto,
including extensions, renewals and replacements thereof in whole or in part, so
long as the principal amount of the Indebtedness secured thereby at the time of
such extension, renewal or replacement is limited to all or any part of the
Property (including improvements thereon) securing the Lien so extended,
renewed or replaced;
1. Liens on the Property of a Subsidiary of the Borrower and exclusively
securing Indebtedness of such Subsidiary to the Borrower or any Guarantor; and
1. Other Liens securing aggregate principal Indebtedness at no time exceeding
$10,000,000.
A. Lease Rentals. The Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist obligations for Rentals in excess of
$10,000,000 during any one Fiscal Year on a non-cumulative basis in the
aggregate for the Borrower and its Subsidiaries.
A. Affiliates. The Borrower will not, and will not permit any Subsidiary to,
enter into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except (a) in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a comparable
arms-length transaction and (b) transactions among the Borrower and Guarantors.
A. Subordinated Indebtedness; Other Indebtedness. The Borrower will not, and
will not permit any Subsidiary to, make any amendment or modification to the
indenture, note or other agreement evidencing or governing any Subordinated
Indebtedness, or directly or indirectly voluntarily prepay, defease or in
substance defease, purchase, redeem, retire or otherwise acquire, any
Subordinated Indebtedness.
A. Environmental Matters. The Borrower shall and shall cause each of its
Material Subsidiaries to conduct in the ordinary course of its business reviews
of the effects of then existing Environmental Laws and then existing
Environmental Claims on its business, condition (financial and other), results
of operations and Property and to
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take all actions required by such Environmental Laws and in respect of such
Environmental Claims, except where the failure to so act could not reasonably
be expected to have a Material Adverse Effect.
A. Change in Corporate Structure; Fiscal Year. The Borrower shall not, nor
shall it permit any Subsidiary to, (a) permit any amendment or modification to
be made to its certificate or articles of incorporation or by-laws which is
materially adverse to the interests of the Lenders (provided that the Borrower
shall notify the Agent of any other amendment or modification thereto as soon
as practicable thereafter) or (b) change its Fiscal Year to end on any date
other than September 30 of each year.
A. Inconsistent Agreements. The Borrower shall not, nor shall it permit any
Subsidiary to, enter into any indenture, agreement, instrument or other
arrangement which, (a) directly or indirectly prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence of the Obligations, the granting of Liens to
secure the Obligations, the provision of the Subsidiary Guaranty, the amending
of the Loan Documents or the ability of any Subsidiary to (i) pay dividends or
make other distributions on its capital stock, (ii) make loans or advances to
the Borrower or (iii) repay loans or advances from the Borrower or (b) contains
any provision which would be violated or breached by the making of Advances, by
the issuance of Facility Letters of Credit or by the performance by the
Borrower or any Subsidiary of any of its obligations under any Loan Document.
A. Financial Covenants. The Borrower on a consolidated basis with its
Subsidiaries shall:
6.24.1. Adjusted Net Worth. At all times after the date hereof, maintain
a minimum Adjusted Net Worth at least equal to the sum of (a) (i) at all times
prior to 10 days after receipt of the financial information described in
subclause (B) below, $214,500,000 and (ii) at all other times, the greater of
(A) $169,500,000 and (B) 90% of Adjusted Net Worth determined for the Borrower
and its Subsidiaries on a pro forma basis as of January 31, 1997 based on
financial information received by the Agent from the Borrower within 90 days
from the date hereof in form and substance acceptable to the Required Lenders,
plus (b) the sum of all proceeds (net of related costs, expenses, fees and
taxes) received by the Borrower or any Subsidiary of the Borrower from the
issuance of its capital stock, plus (c) for each Fiscal Quarter ending after
the date hereof and prior to the time of determination, 50% of the Borrower's
positive Adjusted Net Income for such Fiscal Quarter.
6.24.2. Leverage Ratio. As of the end of each Fiscal Quarter, maintain a
Leverage Ratio of not more than 2.5:1.0.
6.24.3. Interest Expense Coverage Ratio. As of the end of each Fiscal
Quarter, maintain an Interest Expense Coverage Ratio for the period indicated
of not less than the following:
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Period
------
Ratio
-----
For the two months ending March 31, 1997..............2.50:1.00
For the five months ending June 30, 1997..............2.50:1.00
For the eight months ending September 30, 1997........2.50:1.00
For the eleven months ending December 31, 1997........2.75:1.00
For the four Fiscal Quarters ending each of
March 31, 1998, June 30, 1998 and September 30, 1998..2.75:1.00
For each four Fiscal Quarters ending thereafter.......3.00:1.00
A. ERISA Compliance.
With respect to any Plan, neither the Borrower nor any Subsidiary shall:
1. engage in any "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) for which a civil penalty pursuant to
Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code in excess
of $1,000,000 could be imposed;
1. incur any "accumulated funding deficiency" (as such term is defined in
Section 302 of ERISA) in excess of $1,000,000, whether or not waived, or permit
any Unfunded Liability to exceed $1,000,000;
1. permit the occurrence of any Termination Event which could result in a
liability to the Borrower or any other member of the Controlled Group in excess
of $1,000,000;
1. be an "employer" (as such term is defined in Section 3(5) of ERISA) required
to contribute to any Multiemployer Plan or a "substantial employer" (as such
term in defined in Section 4001(a)(2) of ERISA) required to contribute to any
Multiple Employer Plan; or
1. permit the establishment or amendment of any Plan or fail to comply with the
applicable provisions of ERISA and the Code with respect to any Plan
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which could result in liability to the Borrower or any other member of the
Controlled Group which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
A. Material Subsidiaries. The Borrower shall cause each of its Subsidiaries
which becomes a Material Subsidiary on or after the date hereof to join the
Subsidiary Guaranty as a Guarantor pursuant to a joinder agreement in the form
attached to the Subsidiary Guaranty within thirty (30) days of such Person
becoming a Material Subsidiary.
I. ARTICLE
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
A. Any representation or warranty made or deemed made by or on behalf of the
Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any other Loan Document, any Loan, any Facility
Letter of Credit or any certificate or information delivered in connection with
this Agreement or any other Loan Document shall be false in any material
respect on the date as of which made or deemed made.
A. Nonpayment of (a) any principal of any Note or any Reimbursement Obligation
when due, or (b) any interest upon any Note or any commitment fee or other fee
or obligations under any of the Loan Documents within five days after the same
becomes due.
A. The breach by the Borrower of any of the terms or provisions of Section
6.2, Section 6.3(a) or Sections 6.10 through 6.24.
A. The breach by the Borrower (other than a breach which constitutes a Default
under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement which is not remedied within thirty (30) days after written notice
from the Agent or any Lender.
A. Failure of the Borrower or any of its Subsidiaries to pay any Indebtedness
aggregating in excess of $10,000,000 when due; or the default by the Borrower
or any of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement or agreements under which any such
Indebtedness was created or is governed, or the occurrence of any other event
or existence of any other condition, the effect of any of which is to cause, or
to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
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due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof.
A. The Borrower or any of its Subsidiaries shall (a) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such proceeding filed
against it, (e) take any corporate action to authorize or effect any of the
foregoing actions set forth in this Section 7.6, (f) fail to contest in good
faith any appointment or proceeding described in Section 7.7 or (g) become
unable to pay, not pay, or admit in writing its inability to pay, its debts
generally as they become due.
A. Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(d) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of thirty consecutive days.
A. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or control
of, during the twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion.
A. The Borrower or any of its Subsidiaries shall fail within thirty days to
pay, bond or otherwise discharge any judgments or orders for the payment of an
aggregate amount in excess of $10,000,000, which is not covered by undisputed
insurance or stayed on appeal or otherwise being appropriately contested in
good faith and as to which no enforcement actions have been commenced.
A. Any Change in Control shall occur.
A. The Subsidiary Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Subsidiary Guaranty, or any Guarantor shall fail to
comply with any of the terms or
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provisions of the Subsidiary Guaranty, or any Guarantor denies that it has any
further liability under the Subsidiary Guaranty, or gives notice to such
effect.
I. ARTICLE
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
A. Acceleration. If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, the obligations of the Lenders to make Loans or issue
Facility Letters of Credit hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent or any Lender. If any other Default occurs,
the Required Lenders (or the Agent with the consent of the Required Lenders)
may terminate or suspend the obligations of the Lenders to make Loans or issue
Facility Letters of Credit hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives. In addition to the foregoing,
following the occurrence and during the continuance of a Default, so long as
any Facility Letter of Credit has not been fully drawn and has not been
cancelled or expired by its terms, upon demand by the Agent, the Borrower shall
deposit in an account (the "Letter of Credit Cash Collateral Account")
maintained with First Chicago in the name of the Agent, for the ratable benefit
of the Lenders and the Agent, cash in an amount equal to the aggregate undrawn
face amount of all outstanding Facility Letters of Credit and all fees and
other amounts due or which may become due with respect thereto. The Borrower
shall have no control over funds in the Letter of Credit Cash Collateral
Account, which funds shall be invested by the Agent from time to time in its
discretion in certificates of deposit of First Chicago having a maturity not
exceeding thirty days. Such funds shall be promptly applied by the Agent to
reimburse the Issuer for drafts drawn from time to time under the Facility
Letters of Credit. Such funds, if any, remaining in the Letter of Credit Cash
Collateral Account following the payment of all Obligations in full or the
earlier termination of all Defaults shall, unless the Agent is otherwise
directed by a court of competent jurisdiction, be promptly paid over to the
Borrower.
If, within ten Business Days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
A. Amendments. Subject to the provisions of this Article VIII, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders) and
the Borrower may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of
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the Lenders or the Borrower hereunder or waiving any Default hereunder;
provided, however, that no such supplemental agreement shall, without the
consent of each Lender:
1. Extend the final maturity of any Loan or Note or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest or fees
thereon;
1. Reduce the percentage specified in the definition of Required Lenders;
1. Reduce the amount of or extend the date for the mandatory payments required
under Section 2.1.2, or increase the amount of the Commitment of any Lender
hereunder;
1. Subject to Section 2.20, extend the Facility Termination Date or permit any
Facility Letter of Credit to have an expiry date beyond the Facility
Termination Date then in effect;
1. Amend this Section 8.2;
1. Release any Guarantor from the Subsidiary Guaranty; or
1. Permit any assignment by the Borrower of its Obligations or its rights
hereunder.
No amendment of any provision of this Agreement relating to (i) the Agent shall
be effective without the written consent of the Agent (ii) the Issuer or the
Facility Letters of Credit shall be effective without the consent of the Issuer
or (iii) Swing Line Loans shall be effective without the consent of the Swing
Line Lender. The Agent may waive payment of the fee required under Section
12.3.2 without obtaining the consent of any other party to this Agreement.
A. Preservation of Rights. No delay or omission of the Lenders or the Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then
only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
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I. ARTICLE
GENERAL PROVISIONS
A. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive delivery of the Notes and the
making of the Loans herein contemplated.
A. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
A. Taxes. Any stamp, documentary or similar taxes, assessments or charges
payable or ruled payable by any governmental authority in respect of the Loan
Documents shall be paid by the Borrower, together with interest and penalties,
if any.
A. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
A. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter dated
January 23, 1997 in favor of First Chicago.
A. Several Obligations; Benefits of this Agreement. The respective obligations
of the Lenders hereunder are several and not joint and no Lender shall be the
partner or agent of any other (except to the extent to which the Agent is
authorized to act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
A. Expenses; Indemnification. The Borrower shall reimburse the Agent and the
Arranger for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent and the Arranger,
which attorneys may be employees of the Agent or the Arranger) paid or incurred
by the Agent or the Arranger in connection with the preparation, negotiation,
execution, delivery, review, amendment, modification, syndication and
administration of the Loan Documents. The Borrower also agrees to reimburse
the Agent, the Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys'
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fees and time charges of attorneys for the Agent, the Arranger and the Lenders,
which attorneys may be employees of the Agent, the Arranger or the Lenders)
paid or incurred by the Agent, the Arranger or any Lender in connection with
the collection and enforcement of the Loan Documents. The Borrower further
agrees to indemnify the Agent, the Arranger and each Lender, its directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
expenses of litigation or preparation therefor whether or not the Agent, the
Arranger or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents or the
Transaction Documents, the transactions contemplated hereby or thereby or the
direct or indirect application or proposed application of the proceeds of any
Loan hereunder or the use or intended use of any Facility Letter of Credit,
except to the extent that they arise out of the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the
Borrower under this Section shall survive the termination of this Agreement.
A. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
A. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
A. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
A. Nonliability of Lenders. The relationship between the Borrower and the
Lenders and the Agent shall be solely that of borrower and lender. Neither the
Agent nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent nor any Lender undertakes any responsibility to the Borrower
to review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations. The Borrower shall rely entirely upon
its own judgment with respect to its business, and any review, inspection or
supervision of, or information supplied to the Borrower by the Agent or the
Lenders is for the protection of the Agent and the Lenders and neither the
Borrower nor any other Person is entitled to rely thereon. The Borrower agrees
that neither the Agent nor any Lender shall have any liability with respect to,
and the Borrower hereby waives, releases and agrees not to xxx for, any
punitive, special, indirect or consequential damages suffered by the Borrower
in connection with, arising out of, or in any way related to the Loan Documents
or the transactions contemplated thereby or the relationship established by the
Loan Documents, or any act, omission or event occurring in connection
therewith.
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B. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
A. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT
SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT
OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS; PROVIDED, THAT SUCH PROCEEDINGS MAY BE BROUGHT IN
OTHER COURTS IF JURISDICTION MAY NOT BE OBTAINED IN A COURT IN CHICAGO,
ILLINOIS.
A. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
B. Disclosure. The Borrower and each Lender hereby (a) acknowledge and agree
that First Chicago and/or its Affiliates from time to time may hold other
investments in, make other loans to or have other relationships with the
Borrower, including, without limitation, in connection with any interest rate
hedging instruments or agreements or swap transactions, and (b) waive any
liability of First Chicago or such Affiliate to the Borrower or any Lender,
respectively, arising out of or resulting from such investments, loans or
relationships other than liabilities arising out of the gross negligence or
willful misconduct of First Chicago or its Affiliates.
A. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This
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Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent that it has taken
such action.
A. Confidentiality. Each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information provided to it by the Borrower, or by the Agent on the Borrower's
behalf, in connection with this Agreement or any other Loan Document, and no
Lender shall use any such information for any purpose or in any manner other
than pursuant to the terms contemplated by this Agreement, except to the extent
such information (a) was or becomes generally available to the public other
than as a result of a disclosure by such Lender, or (b) was or becomes
available on a non-confidential basis from a source other than the Borrower,
provided that such source is not bound by a confidentiality agreement with the
Borrower or its agents known to such Lender; provided, further, however, that
any Lender may disclose such information (i) after being advised by counsel
(including internal counsel), at the request or pursuant to any requirement of
any governmental or regulatory authority to which such Lender is subject or in
connection with an examination of such Lender by any such authority; (ii)
pursuant to subpoena or other court process, provided that, if it is lawful to
do so, such Lender shall give prompt notice to the Borrower of service thereof
so that the Borrower may seek a protective order or other appropriate remedy or
waive compliance with the provisions of this Section 9.17; (iii) after being
advised by counsel (including internal counsel), when required to do so in
accordance with the provisions of any applicable requirement of law; (iv) to
the extent reasonably required in connection with any litigation or proceeding
involving the Borrower or any of its Subsidiaries to which the Agent, any
Lender or their respective Affiliates may be party, (v) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document, and (vi) to such Lender's independent auditors
and other professional advisors as to which such information has been
identified as confidential.
I. ARTICLE
THE AGENT
A. Appointment. First Chicago is hereby appointed Agent hereunder and under
each other Loan Document, and each of the Lenders authorizes the Agent to act
as the agent of such Lender. The Agent agrees to act as such upon the express
conditions contained in this Article X. The Agent shall not have a fiduciary
relationship in respect of the Borrower or any Lender by reason of this
Agreement.
X. Xxxxxx. The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Agent.
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A. General Immunity. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except for its or their
own gross negligence or willful misconduct.
A. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder, (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered to the Agent and not waived at
closing, or (d) the validity, effectiveness, sufficiency, enforceability or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Borrower to the
Agent at such time, but is voluntarily furnished by the Borrower to the Agent
(either in its capacity as Agent or in its individual capacity).
A. Action on Instructions of Lenders. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or, to the extent required by Section 8.2, all Lenders), and
such instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders and on all holders of Notes. The Agent shall
be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
A. Employment of Agents and Counsel. The Agent may execute any of its duties
as Agent hereunder and under any other Loan Document by or through employees,
agents and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
A. Reliance on Documents; Counsel. The Agent shall be entitled to rely upon
any Note, notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may
be employees of the Agent.
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A. Agent's Reimbursement and Indemnification. The Lenders agree to reimburse
and indemnify the Agent ratably in proportion to their respective Commitments
(or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (a) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (b) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents, and
(c) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent
in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents; provided, that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Agent. The obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
A. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring
to this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give prompt notice thereof to the Lenders.
A. Rights as a Lender. In the event the Agent is a Lender, the Agent shall
have the same rights and powers hereunder and under any other Loan Document as
any Lender and may exercise the same as though it were not the Agent, and the
term "Lender" or "Lenders" shall, at any time when the Agent is a Lender,
unless the context otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
A. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
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A. Successor Agent. The Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower, such resignation to be effective upon
the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall
have the right to appoint, on behalf of the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty days after the resigning Agent's
giving notice of its intention to resign, then the resigning Agent may appoint,
on behalf of the Borrower and the Lenders, a successor Agent. If the Agent has
resigned and no successor Agent has been appointed, the Lenders may perform all
the duties of the Agent hereunder and the Borrower shall make all payments in
respect of the Obligations to the applicable Lender and for all other purposes
shall deal directly with the Lenders. No successor Agent shall be deemed to be
appointed hereunder until such successor Agent has accepted the appointment.
Any such successor Agent shall be a commercial bank having capital and retained
earnings of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Agent. Upon the effectiveness of the resignation of the
Agent, the resigning Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation of an Agent, the provisions of this Article X shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent hereunder and under the other Loan
Documents.
I. ARTICLE
SETOFF; RATABLE PAYMENTS
A. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any time held or
owing by any Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
A. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2 or 3.4) in a greater proportion than its pro-rata share of
such Loans, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender
will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral
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ratably in proportion to their Loans. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made. If
an amount to be setoff is to be applied to Indebtedness of the Borrower to a
Lender, other than Indebtedness evidenced by any of the Notes held by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness evidenced by such Notes.
I. ARTICLE
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
A. Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors and assigns, except that (a) the Borrower shall
not have the right to assign its rights or obligations under the Loan
Documents, and (b) any assignment by any Lender must be made in compliance with
Section 12.3. Notwithstanding clause (b) of this Section, any Lender may at
any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank
shall release the transferor Lender from its obligations hereunder. The Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with Section 12.3 in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the holder
of any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
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A. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any Lender's
interest in any Facility Letter of Credit Obligation, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver which effects any of the modifications referenced in
clauses (a) through (g) of Section 8.2.
12.2.3. Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents; provided, that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a Lender.
A. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights
and obligations under the Loan Documents; provided, however, that in the case
of an assignment to an entity which is not a Lender or an Affiliate of a
lender, such assignment shall be in a minimum amount of $5,000,000. Such
assignment shall be substantially in the form of Exhibit H hereto or in such
other form as may be agreed to by the parties thereto. The consent of the
Agent and, so long as no Default is continuing, the Borrower shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate thereof. Such consent shall not be unreasonably
withheld.
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12.3.2. Effect; Effective Date. Upon (a) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit I to
Exhibit H hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (b) payment of a $3,500 fee to the Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, (a) such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto, and
(b) the transferor Lender shall be released with respect to the percentage of
the Aggregate Commitment and Loans assigned to such Purchaser without any
further consent or action by the Borrower, the Lenders or the Agent. Upon the
consummation of any assignment to a Purchaser pursuant to this Section 12.3.2,
the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case, to the extent applicable, in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment.
A. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries.
A. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 2.17.
I. ARTICLE
NOTICES
A. Giving Notice. Except as otherwise permitted by Section 2.12 with respect
to borrowing notices, all notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in
writing, by facsimile, first class U.S. mail or overnight courier and addressed
or delivered to such party at its address set forth below its signature hereto
or at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with first class
postage prepaid, return receipt requested, shall be deemed given three (3)
Business Days after deposit in the U.S. mail; any notice, if transmitted by
facsimile, shall be deemed given when transmitted; and any notice given by
overnight courier shall be deemed given when received by the addressee.
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A. Change of Address. The Borrower, the Agent and any Lender may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto.
[signature pages to follow]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
RALCORP HOLDINGS, INC.
By:
Print Name:
Title:
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Commitment $50,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:
Print Name:
Title:
Address: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Initial Aggregate
Commitment $50,000,000
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