CONFORMED COPY
$325,000,000
CREDIT AGREEMENT
dated as of
August 25, 1994
among
Xxxx-XxXxx Corporation
Xxxx-XxXxx Credit Corporation
The Banks Listed Herein
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................. 1
SECTION 1.02. Accounting Terms and Determinations......... 14
SECTION 1.03. Types of Borrowings......................... 14
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend......................... 15
SECTION 2.02. Notice of Committed Borrowings.............. 15
SECTION 2.03. Money Market Borrowings..................... 16
SECTION 2.04. Notice to Banks; Funding of Loans........... 20
SECTION 2.05. Notes....................................... 21
SECTION 2.06. Maturity of Loans........................... 22
SECTION 2.07. Interest Rates.............................. 22
SECTION 2.08. Facility Fees............................... 25
SECTION 2.09. Optional Termination or Reduction
of Commitments............................ 26
SECTION 2.10. Scheduled Termination of Commitments........ 26
SECTION 2.11. Optional Prepayments........................ 26
SECTION 2.12. Change of Control........................... 27
SECTION 2.13. General Provisions as to Payments........... 27
SECTION 2.14. Funding Losses.............................. 28
SECTION 2.15. Computation of Interest and Fees............ 28
SECTION 2.16. Regulation D Compensation................... 29
SECTION 2.17. Maximum Interest Rate....................... 30
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness............................... 30
SECTION 3.02. Borrowings.................................. 31
--------
*The Table of Contents is not a part of this Agreement.
-i-
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power............... 32
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention........... 33
SECTION 4.03. Binding Effect.............................. 33
SECTION 4.04. Financial Information....................... 33
SECTION 4.05. Litigation.................................. 33
SECTION 4.06. Compliance with ERISA....................... 34
SECTION 4.07. Environmental Matters....................... 35
SECTION 4.08. Taxes....................................... 35
SECTION 4.09. Subsidiaries................................ 35
ARTICLE V
COVENANTS
SECTION 5.01. Information................................. 35
SECTION 5.02. Payment of Taxes............................ 38
SECTION 5.03. Insurance................................... 38
SECTION 5.04. Conduct of Business and Maintenance
of Existence.............................. 39
SECTION 5.05. Compliance with Laws........................ 39
SECTION 5.06. Compliance with ERISA....................... 39
SECTION 5.07. Negative Pledge............................. 40
SECTION 5.08. Consolidations, Mergers and Sales
of Assets................................. 42
SECTION 5.09. Use of Proceeds............................. 42
SECTION 5.10. Transactions with Affiliates................ 42
SECTION 5.11. Ownership of Credit Corporation............. 42
SECTION 5.12. Change in Rating............................ 43
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default........................... 43
SECTION 6.02. Notice of Default........................... 46
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization............... 46
-ii-
Page
SECTION 7.02. Agent and Affiliates........................ 46
SECTION 7.03. Action by Agent............................. 46
SECTION 7.04. Consultation with Experts................... 46
SECTION 7.05. Liability of Agent.......................... 46
SECTION 7.06. Indemnification............................. 47
SECTION 7.07. Credit Decision............................. 47
SECTION 7.08. Successor Agent............................. 47
SECTION 7.09. Agent's Fee................................. 48
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair...................... 48
SECTION 8.02. Illegality.................................. 49
SECTION 8.03. Increased Cost and Reduced Return........... 50
SECTION 8.04. Substitute Loans............................ 52
SECTION 8.05. Substitution of Bank........................ 52
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty................................ 53
SECTION 9.02. Guaranty Unconditional...................... 53
SECTION 9.03. Discharge Only Upon Payment In
Full; Reinstatement In Certain
Circumstances............................. 54
SECTION 9.04. Waiver by the Company....................... 54
SECTION 9.05. Subrogation................................. 54
SECTION 9.06. Stay of Acceleration........................ 55
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices..................................... 55
SECTION 10.02. No Waivers.................................. 55
SECTION 10.03. Expenses; Documentary Taxes;
Indemnification........................... 56
SECTION 10.04. Sharing of Set-Offs......................... 57
SECTION 10.05. Amendments and Waivers...................... 57
SECTION 10.06. Successors and Assigns...................... 58
SECTION 10.07. Collateral.................................. 60
SECTION 10.08. Governing Law............................... 60
SECTION 10.09. Counterparts; Integration................... 60
-iii-
Page
PRICING SCHEDULE
Exhibit A -- Note
Exhibit B -- Form of Money Market Quote Request
Exhibit C -- Form of Invitation for Money Market
Quotes
Exhibit D -- Form of Money Market Quote
Exhibit E -- Opinion of General Counsel of the
Company
Exhibit F -- Opinion of Xxxxx Xxxx & Xxxxxxxx,
Special Counsel for the Agent
Exhibit G -- Form of Auditor's Certificate
Exhibit H -- Assignment and Assumption Agreement
-iv-
CREDIT AGREEMENT
AGREEMENT dated as of August 25, 1994 among XXXX-XxXXX
CORPORATION, a Delaware corporation, XXXX-XxXXX CREDIT CORPORATION, a Delaware
corporation, the BANKS listed on the signature pages hereof and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes setting
forth Money Market Absolute Rates pursuant to Section 2.03.
"Acquiring Person" means any Person (other than the Company or any
Subsidiary or any employee benefit plan of the Company or any Subsidiary so long
as all such plans in the aggregate hold less than 40% of the Voting Stock of the
Company) who or which is the beneficial owner, directly or indirectly, of more
than ten percent of the combined voting power of the outstanding shares of
Voting Stock of the Company.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted Consolidated Tangible Net Worth" means, at any date, an amount
equal to the sum of (i) Consolidated Tangible Net Worth at such date plus (ii)
the excess (if any) of (A) an amount equal to the excess (if any) of (x)
Consolidated Tangible Net Worth as at December 31, 1993 over (y) Consolidated
Tangible Net Worth as at such date over (B) the aggregate amount of Restricted
Payments declared or made (without duplication) by the Company and its
Subsidiaries during the period from and including January 1, 1994 to and
including such date.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Affiliate" means a Person (other than the Company or a Subsidiary) which
directly or indirectly controls or is controlled by, or is under common control
with the Company or any Subsidiary. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of Voting
Stock or by contract or otherwise.
"Agent" means Xxxxxx Guaranty Trust Company of New York in its capacity as
agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 10.06(c).
"Bank" means each bank listed on the signature pages hereof, each
substitute bank which becomes a Bank pursuant to Section 8.05, each Assignee
which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base Rate
Loan in accordance with the applicable Notice of Committed Borrowing or pursuant
to Article VIII.
"Benefit Liabilities" has the meaning as defined in Section 4001(a)(16) of
ERISA.
"Borrower" means either of the Company or Credit Corporation, and
"Borrowers" means the Company and Credit Corporation.
"Borrowing" has the meaning set forth in Section 1.03.
2
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan in
accordance with the applicable Notice of Committed Borrowing or Article VIII.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means Citibank, N.A., The First National Bank of
Chicago, Xxxxxx Guaranty Trust Company of New York and each such other bank as
may be appointed pursuant to Section 10.06(f).
"Change of Control" means (i) the acquisition by any Person or two or more
Persons acting as a group (within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934) of greater than 40% of the outstanding Voting Stock of the
Company or (ii) any merger or consolidation to which the Company is a party, or
the transfer, conveyance or lease of all or substantially all of the assets of
the Company to another Person, if immediately following such merger,
consolidation, transfer, conveyance or lease a majority of the directors of the
surviving corporation (or the corporation which is the beneficial owner of the
assets transferred or conveyed or the lessee of the assets leased) are other
than Continuing Directors.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.09, or, as the context may
require, the obligation of such Bank to make Committed Loans hereunder.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01.
"Company" means Xxxx-XxXxx Corporation, a Delaware corporation, and its
successors.
"Company's 1993 Annual Report" means the Company's annual report on Form
10-K for 1993, as filed with the Securities and Exchange Commission.
"Consolidated Subsidiary" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
3
"Consolidated Tangible Net Worth" means at any date the consolidated
Stockholders' Equity of the Company and its Consolidated Subsidiaries less their
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means the amount of (i) all write-ups (other
than write-ups resulting from foreign currency translations and write-ups of
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to December 31, 1993 in the book value
of any asset owned by the Company or a Subsidiary, and (ii) all unamortized debt
discount and expense (to the extent, if any, recorded as an unamortized deferred
charge), unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses.
"Continuing Director" means any member of the Board of Directors of the
Company who is unaffiliated with, and not a nominee of, an Acquiring Person and
was a member of the Board of Directors of the Company immediately prior to any
transaction described in clause (ii) of the definition of Change of Control set
forth in this Section 1.01 and also prior to the time that the Acquiring Person
became an Acquiring Person, and any successor of a Continuing Director who is
unaffiliated with, and not a nominee of, the Acquiring Person and who is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board of Directors.
"Credit Corporation" means Xxxx-XxXxx Credit Corporation, a Delaware
corporation, and its successors.
"Debt" of any Person means, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property, except trade
accounts payable arising in the ordinary course of business, (iv) all Debt
secured by a Lien on any asset of such Person which is not otherwise an
obligation of such Person, to the extent of the lesser of such Debt or the book
value of such asset, (v) all Debt of others Guaranteed by such Person to the
extent of the amount of such Guarantee, and (vi) all production payment,
proceeds production payment or similar obligations of such Person; provided that
(a) Debt shall not include any Debt described above with respect to which there
shall have been irrevocably deposited in trust, cash, or direct obligations of
the United States, or any agency thereof that are backed by the full faith and
credit of the United States, as necessary for the timely redemption, payment or
satisfaction
4
of such Debt and (b) the Debt of any Subsidiary arising as a result of being a
general partner or joint venturer shall not constitute Debt to the extent such
obligations exceed the Company's direct or indirect net book investment in such
Subsidiary.
"Debt Acceleration Threshold" means (i) $5,000,000 in the case of any Debt
other than LDC Debt and (ii) $40,000,000 in the case of LDC Debt.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section 2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
5
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Company
and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed Borrowing
or Article VIII.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
Citibank, N.A., The First National Bank of Chicago, Xxxxxx Guaranty Trust
Company of New York and each such other bank as may be appointed pursuant to
Section 10.06(f).
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.16(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated as of August
15, 1990 among the Borrower, the banks parties thereto and Xxxxxx Guaranty Trust
Company of New York, as agent, as amended to the Effective Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next
6
succeeding Domestic Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to Xxxxxx Guaranty Trust Company of New York on such day
on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person entered into for the purpose of directly or indirectly guaranteeing
any Debt of any other Person including, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or (ii) entered into for the purpose of assuring in any
other manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part), provided that (x)
the term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business, and (y) in no event shall a Guarantee by the
Company or a Subsidiary of the Debt of the Company or a Subsidiary be duplicated
for purposes of determining an amount of Debt for purposes hereof. The term
"Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending one, two, three
or six months thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
7
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) With respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) With respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) With respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter as
the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
8
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) With respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LDC Country" means any country which is not a member of the Organization
for Economic Co-operation and Development.
"LDC Debt" means any Debt of a Subsidiary of the Company (whether or not
Guaranteed by the Company) incurred to finance the conduct of business in an LDC
Country.
"LIBOR Auction" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including any production payment, proceeds production payment or similar
financing arrangement with respect to such asset). Without limiting the
generality of the foregoing, for the purposes of this Agreement, (i) the Company
or any Subsidiary shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement or other title retention agreement relating to such
asset and (ii) the sale or assignment by Credit Corporation or any of its
Subsidiaries ("seller") of Receivables shall be deemed to create Debt of the
seller (in an amount equal to the proceeds of the sale) secured by a Lien on
Receivables of the seller unless either (A) such transaction is a sale without
recourse for cash payable on the date of sale in an amount not less than the
fair market value of the
9
Receivables sold or (B) such transaction is (or would be, if the Receivables
were accounts) excluded from the scope of article 9 of the Uniform Commercial
Code (as in effect in the State of New York) by Section 9-104(f) thereof.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market Loan
and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans or
any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Financial Obligations" means a principal or face amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $10,000,000.
"Material Subsidiary" means, at any time, Credit Corporation and any other
Subsidiary which as of such time meets the definition of a "significant
subsidiary" with respect to the Company contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Money Market Absolute Rate" has the meaning set forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
10
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any employee pension benefit plan within the
meaning of Section 4001(a)(3) of ERISA or an employee pension benefit plan as to
which the Company or any of its Related Persons would be treated as a
contributing employer under Section 4212(c) of ERISA if it were to be
terminated.
"Notes" means promissory notes of a Borrower, substantially in the form of
Exhibit A hereto, evidencing the obligation of such Borrower to repay the Loans
made to it, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"Parent" means, with respect to any Bank, any Person, other than an
individual, controlling such Bank.
"Participant" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means an "employee pension benefit plan" (as defined in Section 3 of
ERISA) (other than a Multiemployer Plan) which is or has been established and
maintained, or to which contributions are or have been made, by the Company, or
an employee pension benefit plan as to which the Company or any of its Related
Persons would be treated as a contributory sponsor under Section 4069 of ERISA
if it were to be terminated.
"Pricing Schedule" means the Schedule attached hereto identified as such.
11
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Receivable" means any right to payment of money, whether for goods sold or
leased or to be sold or leased, services rendered or to be rendered, money lent
or other credit extended, or otherwise, whether or not evidenced by an
instrument.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar Reference
Banks, as the context may require, and "Reference Bank" means any one of such
Reference Banks.
"Refunding Borrowing" means a Committed Borrowing or that portion thereof
which, after application of the proceeds thereof, results in no net increase in
the outstanding principal amount of Committed Loans made by any Bank to either
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Person" means any trade or business (whether or not incorporated)
which, together with the Company (and other Related Persons), is treated as a
single employer under Section 414 of the Internal Revenue Code.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Company's capital stock (except dividends or other distributions
payable solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement or acquisition of (a) any shares of the
Company's capital stock or (b) any option, warrant or other right to acquire
shares of the Company's capital stock; provided that payments in respect of
employee stock options, stock appreciation rights and other stock based employee
compensation arrangements in the ordinary course of business shall not
constitute Restricted Payments.
12
"Restricted Property", to the extent of the Company's direct or indirect
interest therein, means:
(a) any property interest owned by the Company or any
Consolidated Subsidiary in reserves of oil, gas, coal lignite, uranium,
copper or other minerals which are "proved reserves", as defined in the
regulations promulgated by the Securities and Exchange Commission or,
in the absence of an applicable definition, reserves which geological,
geophysical and engineering data demonstrate with reasonable certainty
to be recoverable in future years from known reservoirs or deposits
under existing economic and operating conditions; and
(b) any refining or manufacturing property or any drilling
rigs and related equipment of the Company or any Consolidated
Subsidiary.
"Revolving Credit Period" means the period from and including the Effective
Date to but not including the Termination Date.
"S&P" means Standard & Poor's Corporation.
"Stockholders' Equity" means, at any date, the consolidated stockholders'
equity of the Company and its Consolidated Subsidiaries as would be shown on a
balance sheet prepared in accordance with generally accepted accounting
principles as of such date.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Substitute Loan" means a Loan made by a Bank pursuant to Section 8.02,
8.03 or 8.04(a).
"Termination Date" means August 25, 1999, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in which case the
Termination Date shall be the next preceding Euro-Dollar Business Day.
"Unfunded Benefit Liabilities" means the "amount of unfunded benefit
liabilities" as defined in Section 4001(a) (18) of ERISA.
13
"Voting Stock" means capital stock of any class or classes (however
designated) having ordinary voting power for the election of directors of the
Company, other than stock having such power only by reason of the happening of a
contingency.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II (and not, in any event, pursuant to Article VIII) on a
single date and for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions of Article II
under which participation therein is determined (i.e., a "Committed Borrowing"
is a Borrowing under Section 2.01 in which all Banks participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which the Bank participants are determined on the basis of their
bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the Revolving Credit Period each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make loans to either Borrower pursuant to this Section from time to time in
amounts such that the aggregate principal amount of Committed Loans by such Bank
at any one time outstanding to both Borrowers shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $10,000,000 or any larger multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with
14
Section 3.02(b)) and shall be made from the several Banks ratably in proportion
to their respective Commitments. Within the foregoing limits, a Borrower may
borrow under this Section, repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time during the Revolving Credit Period under
this Section.
SECTION 2.02. Notice of Committed Borrowings.
(a) The Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 10:30 A.M. (New York City time) on (x) the date of
each Base Rate Borrowing, (y) the second Domestic Business Day before each CD
Borrowing and (z) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) The provisions of subsection (a) above notwithstanding, if the Borrower
shall not have given a Notice of Borrowing not later than 10:30 A.M. (New York
City time) on the last day of the Interest Period applicable to an outstanding
Committed Borrowing, then, unless the Borrower notifies the Agent before such
time that it elects not to borrow on such date, the Agent shall be deemed to
have received a Notice of Committed Borrowing specifying (i) that the date of
the proposed Borrowing shall be the last day of the Interest Period applicable
to such outstanding Borrowing, (ii) that the aggregate amount of the proposed
Borrowing shall be the amount of such outstanding Borrowing, and (iii) that the
Loans comprising the proposed Borrowing are to be Base Rate Loans.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings pursuant
to Section 2.01, either Borrower may, as set forth in this Section, request the
27008/958/CA/ca.conf
15
Banks during the Revolving Credit Period to make offers to make Money Market
Loans to such Borrower. The Banks may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When a Borrower wishes to request offers to
make Money Market Loans under this Section, it shall transmit to the Agent by
telex or facsimile transmission a Money Market Quote request substantially in
the form of Exhibit B hereto so as to be received no later than 10:30 A.M. (New
York City time) on (x) the fifth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Domestic
Business Day next preceding the date of Borrowing proposed therein, in the case
of an Absolute Rate Auction (or, in either case, such other time or date as the
Company and the Agent shall have mutually agreed and shall have notified to the
Banks not later than the date of the Money Market Quote request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote request. No Money Market Quote
request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a Money
Market Quote request, the Agent shall send to the Banks by telex or facsimile
transmission an invitation for Money Market Quotes substantially in the form of
Exhibit C hereto, which shall constitute an
16
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 10.01 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Company and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) 1:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of
a LIBOR Auction or (y) 9:15 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction. Subject to Articles III and
VI, any Money Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of Exhibit
D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than, equal to or less than the Commitment of the quoting Bank,
(x) must be $5,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market Loans for which offers were
requested, and (z) may be subject to an aggregate limitation as to the
principal amount of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
17
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection
(d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the Borrower of the
terms (x) of any Money Market Quote submitted by a Bank that is in accordance
with subsection (d) and (y) of any Money Market Quote that amends, modifies or
is otherwise inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote request. Any such subsequent
Money Market Quote shall be disregarded by the Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Borrower shall specify (A)
the aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market Quote
request, (B) the respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be,
18
so offered and (C) if applicable, limitations on the aggregate principal amount
of Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New York
City time) on (x) the third Euro-Dollar Business Day prior to the proposed date
of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Company and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote request,
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks with the
same Money Market Margins or Money Market Absolute Rates, as the case may be,
for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the
19
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Banks; Funding of Loans. (a) Upon receipt (or
deemed receipt) of a Notice of Borrowing, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be revocable by the Borrower
giving (or deemed to have given) such Notice of Borrowing.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified in or pursuant to Section 10.01. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day on which
such Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed by such Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b) of this Section, or
remitted by such Borrower to the Agent as provided in Section 2.13, as the case
may be.
(d) Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent such
Bank's share of such Borrowing, the Agent may assume that such Bank has made
such share available to the Agent on the date of such Borrowing in accordance
with subsections (b) and (c) of this Section 2.04 and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at a rate per
annum equal to the Federal Funds Rate. If such Bank shall repay to the Agent
such corresponding amount, such amount so repaid shall
20
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower shall be
evidenced by a single Note of such Borrower payable to the order of such Bank
for the account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, upon at least two Domestic Business Days' notice to a
Borrower and the Agent, request that its Loans of a particular type to such
Borrower be evidenced by a separate Note of such Borrower in an amount equal to
the aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to a "Note" or the "Notes" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(b), the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it to each Borrower and the date
and amount of each payment of principal made with respect thereto, and may, if
such Bank so elects in connection with any transfer or enforcement of its Note
of either Borrower, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
to such Borrower then outstanding; provided that the failure of any Bank to make
any such recordation or endorsement shall not affect the obligations of either
Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by each Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable for each Interest Period on the
last day thereof. Any overdue principal of or interest on any Base Rate Loan
shall bear
21
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 1% plus the rate otherwise applicable to Base Rate Loans for such
day.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that if any CD Loan or any
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1% plus the higher of (i)
the sum of the CD Margin for such day plus the Adjusted CD Rate applicable to
the Interest Period for such Loan and (ii) the rate applicable to Base Rate
Loans for such day.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of
22
recognized standing for the purchase at face value from each CD Reference Bank
of its certificates of deposit in an amount comparable to the principal amount
of the CD Loan of such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R. ss.
327.3(e) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Euro-Dollar Margin for such day plus the
applicable London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Banks in the London
23
interbank market at approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar Loan of such
Euro-Dollar Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day at a rate per annum equal to the
higher of (i) the sum of 1% plus the Euro-Dollar Margin for such day plus the
London Interbank Offered Rate applicable to the Interest Period for such Loan
and (ii) the sum of 1% plus the Euro- Dollar Margin for such day plus the
quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%)
by dividing (x) the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar Business Days, then for
such other period of time not longer than three months as the Agent may select)
deposits in dollars in an amount approximately equal to such overdue payment due
to each of the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 1% plus the rate
applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the Base Rate for such day.
24
(f) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated hereby. If any Reference Bank does not
furnish a timely quotation, the Agent shall determine the relevant interest rate
on the basis of the quotation or quotations furnished by the remaining Reference
Bank or Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Facility Fees. The Company shall pay to the Agent for the
account of the Banks ratably a facility fee at the Facility Fee Rate (determined
daily in accordance with the Pricing Schedule). Such facility fee shall accrue
(i) from and including the Effective Date to but excluding the Termination Date
(or earlier date of termination of the Commitments in their entirety), on the
daily aggregate amount of the Commitments (whether used or unused) and (ii) from
and including the Termination Date or such earlier date of termination to but
excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans. Accrued fees under this
Section shall be payable quarterly on each March 31, June 30, September 30 and
December 31 and upon the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments. The Company
may, upon at least three Domestic Business Days' notice to the Agent, (i)
terminate the Commitments at any time, if no Loans are outstanding at such time
or (ii) ratably reduce from time to time by an aggregate amount of $1,000,000 or
any larger multiple thereof, the aggregate amount of the Commitments in excess
of the aggregate outstanding principal amount of the Loans.
SECTION 2.10. Scheduled Termination of Commitments. The Commitments shall
terminate on the Termination Date, and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
SECTION 2.11. Optional Prepayments. (a) Either Borrower may, upon at least
one Domestic Business Day's notice to the Agent, prepay any Base Rate Borrowing
(or any
25
Money Market Borrowing bearing interest at the Base Rate pursuant to Section
8.01(a)) in whole at any time, or from time to time in part in amounts which,
when added to the principal amounts of other Loans to it maturing and being paid
at the time of such prepayment, equals in the aggregate $1,000,000 or any larger
multiple thereof, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Borrowing.
(b) Either Borrower may, upon at least three Domestic Business Days' notice
to the Agent, in the case of a CD Borrowing, or upon at least three Euro-Dollar
Business Days' notice to the Agent, in the case of a Euro-Dollar Borrowing,
subject to Section 2.14, prepay any such Borrowing by it in whole or in part in
amounts aggregating $1,000,000 or any larger multiple thereof, on any Domestic
Business Day, in the case of a CD Borrowing, or any Euro-Dollar Business Day, in
the case of a Euro-Dollar Borrowing, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the outstanding CD
Loans or Euro-Dollar Loans of the several Banks included in such Borrowing,
subject to Article VIII.
(c) Except as provided in Section 2.11(a), neither Borrower may prepay all
or any portion of the principal amount of any Money Market Loan prior to the
maturity thereof.
(d) Upon receipt of a notice of prepayment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and such notice shall not thereafter
be revocable by the Borrower.
SECTION 2.12. Change of Control. If a Change of Control shall occur (i) the
Company will, within ten days after the occurrence thereof, give each Bank
notice thereof and shall describe in reasonable detail the facts and
circumstances giving rise thereto and (ii) each Bank may, at any time at its
option by notice to the Borrowers and the Agent given not later than 60 days
after such Change of Control, (x) terminate its Commitment, which shall
thereupon be terminated, and (y) by three Domestic Business Days' notice to the
Borrowers and the Agent declare the Notes held by it (together with accrued
interest thereon) and any other amounts payable hereunder for its account to be,
and such Notes and such other amounts shall thereupon become, immediately due
and payable without presentment, demand,
26
protest or othe notice of any kind, all of which are hereby waived by the
Borrowers.
SECTION 2.13. General Provisions as to Payments. (a) The Borrowers shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 10.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. In any case where, and
for so long as, the date for any payment of principal by either Borrower
hereunder is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time and the affected payment shall not be deemed
past due if the payment date is not extended as a result of any action or
failure to act by such Borrower.
(b) Unless the Agent shall have received notice from a Borrower prior to
the date on which any payment is due from such Borrower to the Banks hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that such Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If a Borrower makes any payment of principal
with respect to any Fixed
27
Rate Loan (pursuant to Section 2.11(b), Article VI or VIII) on any day other
than the last day of the Interest Period applicable thereto, or the end of an
applicable period fixed pursuant to Section 2.07(d), or if a Borrower fails to
borrow or prepay any Fixed Rate Loans after notice has been given to any Bank in
accordance with Section 2.04(a) or 2.11(d), the Company shall reimburse each
Bank within 15 days after demand for any resulting loss or expense incurred by
it (or by an existing or contractually committed prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow or prepay,
provided that such Bank shall have delivered to the Company a certificate as to
the amount of such loss or expense, setting forth in reasonable detail the
calculation thereof, which certificate shall be presumed correct unless and
until it is shown to be in error.
SECTION 2.15. Computation of Interest and Fees. Interest based on the Prime
Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and facility fees
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
SECTION 2.16. Regulation D Compensation. (a) Each Bank may require either
Borrower to pay, contemporaneously with each payment of interest thereon,
additional interest on each Euro-Dollar Loan of such Bank to such Borrower at a
rate per annum equal to the excess of (i)(A) the applicable London Interbank
Offered Rate (or other base rate determined pursuant to Section 2.07(d)) divided
by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the rate specified
in clause (i)(A). Any Bank wishing to require payment of such additional
interest (x) shall so notify such Borrower and the Agent, in which case such
additional interest on the Euro-Dollar Loans of such Bank to such Borrower shall
be payable to such Bank at the place indicated in such notice with respect to
each Interest Period commencing at least four Euro-Dollar Business Days after
the giving of such notice and (y) shall notify such Borrower at least three
Euro-Dollar Business Days prior to each date on which interest is payable
thereon of the amount then due it under this Section. Any Bank which has given
notice under clause (x) above that such additional interest is payable shall
notify such Borrower and the Agent, for so long as such additional interest is
28
payable, annually, not later than each January 15th that such additional
interest is payable, and, as soon as practicable after such additional interest
has ceased to be payable, that it is no longer payable. In the event a Bank
shall fail to notify the Borrowers and the Agent annually of the continuing
requirements for such additional interest by the applicable January 15th, such
Bank shall not be entitled to additional interest until such Bank has provided
the notice required by (x) above.
(b) "Euro-Dollar Reserve Percentage" means for any day for any Bank that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the effective reserve requirement for such Bank as
determined in good faith by such Bank in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents).
SECTION 2.17. Maximum Interest Rate. (a) Nothing contained in this
Agreement or the Notes shall require either Borrower to pay interest at a rate
exceeding the maximum rate permitted by applicable law.
(b) If the amount of interest payable by either Borrower for the account of
any Bank on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to Section 2.07, would exceed the
maximum amount permitted by applicable law to be charged by such Bank, the
amount of interest payable by such Borrower for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.
(c) If the amount of interest payable by either Borrower for the account of
any Bank in respect of any interest computation period is reduced pursuant to
clause (b) of this Section and the amount of interest payable by either Borrower
for the account of such Bank in respect of any subsequent interest computation
period, computed pursuant to Section 2.07, would be less than the maximum amount
permitted by applicable law to be charged by such Bank, then the amount of
interest payable for its account in respect of such subsequent interest
computation period shall be automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate amount by which interest
paid by both Borrowers for the account of any Bank has been increased pursuant
to this clause (c) exceed the aggregate amount by which interest paid by both
29
Borrowers for its account has theretofore been reduced pursuant to clause (b) of
this Section.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 10.05):
(a) receipt by the Agent of counterparts hereof signed by each
of the Company, Credit Corporation, the Banks and the Agent (or, in the
case of any party as to which an executed counterpart shall not have
been received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party);
(b) receipt by the Agent for the account of each Bank of duly
executed Notes of the Company and Credit Corporation dated on or before
the Effective Date complying with the provisions of Section 2.05;
(c) receipt by the Agent of an opinion of the General Counsel
of the Company, substantially in the form of Exhibit E hereto and
covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agent, substantially in the form of
Exhibit F hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably
request;
(e) receipt by the Agent of evidence satisfactory to it of the
payment of all amounts payable under the Existing Credit Agreement; and
(f) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Company and Credit
Corporation, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Agent;
30
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
August 31, 1994. The Agent shall promptly notify the Company and the Banks of
the Effective Date, and such notice shall be conclusive and binding on all
parties hereto. The Banks that are parties to the Existing Credit Agreement and
each of the Borrowers agree that the commitments under the Existing Credit
Agreement shall terminate in their entirety simultaneously with and subject to
the effectiveness of this Agreement and that the Borrowers shall be obligated to
pay the accrued commitment and facility fees thereunder to but excluding the
date of such effectiveness.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of a Notice of Borrowing as required
by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(c) the fact that, immediately after such Borrowing, (i) in
the case of a Refunding Borrowing, no Event of Default and (ii) in the
case of any other Borrowing, no Default shall have occurred and be
continuing;
(d) the fact that the representations and warranties of the
Company contained in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth in Section 4.05
as to any matter which has theretofore been disclosed in writing by the
Company to the Banks) shall be true on and as of the date of such
Borrowing; and
(e) the fact that, immediately after such Borrowing, (i) in
the case of a Refunding Borrowing, Adjusted Consolidated Tangible Net
Worth and (ii) in the case of any other Borrowing, Consolidated
Tangible Net Worth shall be greater
than $800,000,000.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of
31
such Borrowing as to the facts specified in clauses (b), (c), (d) and (e) of
this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the Company and Credit
Corporation is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware, and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted which, if not obtained, could
reasonably be expected to have a material adverse effect on the business or
operations of the Company and its Subsidiaries considered as a whole.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Company and Credit Corporation of
this Agreement and the Notes are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action, require no approval of
or filing with any governmental body, agency or official and do not contravene
or constitute a default under any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of such Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Borrower or result in the creation or imposition of any mortgage, security
interest or other lien or encumbrance on any asset of such Borrower or any of
its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of each of the Company and Credit Corporation, and each Note
of each Borrower, when executed and delivered in accordance with this Agreement,
will constitute a valid and binding obligation of such Borrower, in each case
enforceable in accordance with its terms.
SECTION 4.04. Financial Information. The consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of December 31, 1993 and the
related consolidated statements of income, retained earnings and cash flows for
the year then ended, reported on by Xxxxxx Xxxxxxxx & Co. and set forth in the
Company's 1993 Annual Report, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally
32
accepted accounting principles, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and cash flows for such year.
SECTION 4.05. Litigation. Except as set forth in the Company's 1993 Annual
Report, there is no action, suit or proceeding pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, which involves any substantial risk of an adverse decision which would
result in any material adverse effect on the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as a whole, or which involves any material
risk of an adverse decision which would draw into question the validity of the
obligations of either Borrower under this Agreement or the Notes of such
Borrower.
SECTION 4.06. Compliance with ERISA.
(a) Neither the Company nor any Related Person has failed to comply in any
material respect with the applicable provisions of ERISA and the Internal
Revenue Code and the regulations promulgated thereunder (including, without
limitation, sections 4068, 4069 and 4212 of ERISA), where such failure could
reasonably be expected to be materially adverse to the Company and its
Subsidiaries taken as a whole.
(b) Other than premiums to the PBGC due in the normal course, no liability
to the PBGC (with respect to which the Company or any Related Person is
delinquent) has been incurred and remains unsatisfied or is expected by the
Company to be incurred with respect to any Plan by the Company or any Related
Person which is or would be materially adverse to the Company and its
Subsidiaries taken as a whole.
(c) Neither the Company nor any Related Person is obligated to contribute
to, or has incurred a withdrawal liability with respect to, any Multiemployer
Plan in an amount that would be materially adverse to the Company and its
Subsidiaries taken as a whole.
(d) Full payment has been made of all amounts that the Company or any
Related Person is required under the terms of each Plan to have paid as
contributions to such Plan as of the last day of the most recent fiscal year of
such Plan ended prior to the date hereof (or will be made within the period
described in Section 404 of the Internal
33
Revenue Code) and no accumulated funding deficiency (as defined in Section 302
of ERISA and Section 412 of the Internal Revenue Code), whether or not waived
exists with respect to any Plan. Each Plan satisfies the minimum funding
standard of Section 412 of the Internal Revenue Code.
(e) The amount of Benefit Liabilities under each Plan, determined as of the
end of the Company's most recently ended fiscal year (on the basis of
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA) did
not exceed the current value of the assets of such Plans determined as of such
date in an amount that, individually or in the aggregate with such amount for
all Plans, exceeds $25,000,000.
SECTION 4.07. Environmental Matters. The Company and each of its Material
Subsidiaries is in compliance with, or has obtained waivers or variances from,
all applicable requirements of all federal, state, local and foreign
governmental authorities with respect to environmental protection, including,
without limitation, regulations relating to pollution control or establishing
quality criteria and standards for air, water and land ("Environmental Laws"),
in all jurisdictions where such Persons are presently doing business and which,
if not obtained or complied with, could reasonably be expected to have a
material adverse effect on the business or operations of the Company and its
Subsidiaries considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined through the year ended December
31, 1989. The Company and its Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company or any of its Subsidiaries, except
such taxes or assessments, if any, as are being contested in good faith by
appropriate proceedings. The charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of taxes are, in the opinion of the
Company, adequate.
SECTION 4.09. Subsidiaries. Each of the Material Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers required
to carry on its business as now conducted. Each Material Subsidiary has all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and which, if not obtained,
34
could reasonably be expected to have a material adverse effect on the business
or operations of the Company and its Subsidiaries considered as a whole.
ARTICLE V
COVENANTS
The Company covenants and agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the Banks:
(a) to the extent not already delivered pursuant to another
clause of this Section 5.01, as soon as available and in any event
within 120 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for
such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Xxxxxx
Xxxxxxxx & Co. or other independent public accountants of nationally
recognized standing and an unaudited consolidated balance sheet of
Credit Corporation and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income,
retained earnings and cash flows for such fiscal year, setting forth in
the case of such statements of income and cash flows in comparative
form the figures for the previous fiscal year, accompanied by (x) the
report thereon of independent public accountants or (y) if such
financial statements are not otherwise reported on by independent
public accountants, a certificate of the chief accounting officer of
Credit Corporation as to fairness of presentation, generally accepted
accounting principles and consistency;
(b) to the extent not already delivered pursuant to another
clause of this Section 5.01, as soon as available and in any event
within 60 days after the end of each of the first three quarters of
each fiscal year of the Company, (x) a consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end of such
35
quarter, (y) the related consolidated statements of income for such
quarter and for the portion of the Company's fiscal year ended at the
end of such quarter and (z) the related consolidated statement of cash
flows for the portion of the Company's fiscal year ended at the end of
such quarter, setting forth in the case of such statements of income
and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above or clause (g)
below, a certificate of the chief accounting officer of the Company
stating whether to the knowledge of such officer, there exists on the
date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of audited
year-end financial statements referred to in clauses (a) or (g), a
statement substantially in the form attached hereto as Exhibit G of the
firm of independent public accountants which reported on such
statements stating whether anything has come to their attention to
cause them to believe that there existed on the date of such statements
any Default;
(e) forthwith upon any executive officer (meaning any member
of the executive management committee, the treasurer, the chief
financial officer, the general counsel or the chief accounting officer)
of the Company obtaining knowledge of the occurrence of any Default, a
certificate of the chief accounting officer of the Company setting
forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of
36
all financial statements, reports and proxy statements so mailed;
(g) promptly upon the filing thereof, a copy of each
registration statement (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) which the
Company shall have filed with the Securities and Exchange Commission,
and, within 15 days after the filing thereof, a copy of each annual,
quarterly or other report (other than the exhibits thereto) which the
Company shall have filed with the Securities and Exchange Commission;
(h) if and when the Company or any Related Person (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of or appoint a trustee to
administer any Plan, a copy of such notice; and
(i) from time to time, upon receiving from the Banks such
assurances of confidential treatment as the Company may reasonably
request, such additional information regarding the financial position
or business of the Company as the Agent, at the request of any Bank,
may reasonably request.
SECTION 5.02. Payment of Taxes. The Company covenants that it will, and
will cause each of its Subsidiaries to, pay all material taxes, assessments and
other governmental charges imposed upon it or any of its Properties or assets or
in respect of any of its franchises, business, income or profits before any
penalty or interest accrues thereon, and all material claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and
37
which by law have or might become a Lien upon any of its Properties or assets,
non-payment of which could have a material and adverse effect on the business,
condition (financial or otherwise) or operations of the Company and its
Subsidiaries taken as a whole or on the ability of the Company to comply with
its obligations under this Agreement or the Notes, provided that no such tax,
assessment, charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted.
SECTION 5.03. Insurance. The Company will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its Properties and business and the Properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar business
and similarly situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations; provided,
however, that in lieu of any such insurance, the Company or any such Subsidiary
may maintain a system or systems of self-insurance which are in accord with
sound practices of similarly situated corporations of established reputation
maintaining such systems and with respect to which the Company or such
Subsidiary shall maintain adequate insurance reserves in accordance with
generally accepted accounting principles and in accordance with sound actuarial
and insurance principles.
SECTION 5.04. Conduct of Business and Maintenance of Existence. Except as
permitted by Section 5.08, the Company will at all times preserve and keep in
full force and effect and will cause each Material Subsidiary to preserve and
keep in full force and effect its corporate existence, and rights and franchises
deemed material to the Properties, business, prospects, profits, condition
(financial or otherwise) or operations of the Company and its Subsidiaries taken
as a whole, except that such rights and franchises and the corporate existence
of any Material Subsidiary (other than Credit Corporation) may be terminated if,
in the good-faith judgment of the Board of Directors of the Company, such
termination is in the best interest of the Company and is not disadvantageous to
the Banks.
SECTION 5.05. Compliance with Laws. The Company will, and will use its best
efforts to cause each Subsidiary to, comply with all applicable laws, rules and
regulations and orders of any governmental authority, non-compliance with which
could have a material and adverse effect on the business, condition (financial
or otherwise) or operations of the Company and its Subsidiaries taken as a whole
or on
38
the ability of the Company to comply with its obligations under this Agreement
or the Notes.
SECTION 5.06. Compliance with ERISA. The Company will not, and will not
permit any Subsidiary to (i) engage in any transaction in connection with which
the Company or any Subsidiary could be subject to either a civil penalty
assessed pursuant to Section 502(i) of ERISA, a tax imposed by Section 4975 of
the Internal Revenue Code, or a lien pursuant to Section 412(n) of the Internal
Revenue Code, (ii) terminate any Plan in a manner, or take any other action with
respect to any such Plan (including, without limitation, a substantial cessation
of operations within the meaning of Section 4068(f) of ERISA), which could
result in any liability of the Company or any Subsidiary to the PBGC or to a
trustee appointed pursuant to Section 4042(b) or (c) of ERISA, or incur any
liability to the PBGC on account of a termination of a Plan under Section 4064
of ERISA, (iii) fail to make full payment when due of all amounts which, under
the provisions of any Plan or Section 412(m) of the Internal Revenue Code, the
Company or any Subsidiary is required to pay as contributions thereto, (iv)
incur any complete or partial withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan, or (v) permit to exist any accumulated
funding deficiency, whether or not waived, with respect to any Plan, if, in the
aggregate, such penalty or tax or such liability, or the failure to make such
payment, or the existence of such deficiency, as the case may be, exceeds
$25,000,000.
SECTION 5.07. Negative Pledge. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien securing Debt on any
Restricted Property now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created
in contemplation of such event and which does not extend to any other
assets of the Company or its Consolidated Subsidiary;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring,
constructing or improving such asset, provided that such Lien attaches
to such asset concurrently with or within 24 months after the
acquisition or completion of construction or improvement thereof, and
provided further that the Debt
39
secured by such Lien shall not exceed the cost of acquiring,
constructing or improving such asset;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Company or a Consolidated Subsidiary and not created in contemplation
of such event and which does not extend to any other assets of the
Company or its Consolidated Subsidiaries;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested
in good faith by appropriate proceedings;
(g) Liens to secure indebtedness of the pollution control or
industrial revenue bond type and Liens in favor of the United States or
any state thereof, or any department, agency, instrumentality, or
political subdivision of any such jurisdiction, to secure any
indebtedness incurred for the purpose of financing all or any part of
the purchase price or cost of constructing or improving the property
subject thereto;
(h) any Lien (including Liens in respect of production
payments) to secure the payment of all or any part of the cost of
exploration, drilling, mining, or development of property which had
prior to December 31, 1993, produced no material volumes of
hydrocarbons, coal, minerals, timber or other products or by-products
produced or extracted from such property, provided that the Debt
secured by such Lien shall not exceed the cost of exploring, drilling,
mining or development of such property; and provided further that such
Lien shall not extend to any property other than the property being
explored, drilled, mined or developed;
(i) Lien securing Debt incurred by Xxxx-XxXxx Oil (U.K.)
Limited to pay all or any part of the cost of exploration, drilling or
development of any North Sea properties within the territorial waters
of the United Kingdom, provided that the Debt secured by such liens
shall not exceed the cost of such exploration, drilling, or
development; and provided further that
40
such Lien shall not extend to any property other than the property
being explored, drilled or developed;
(j) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this section, provided that the amount of
such Debt is not increased and is not secured by any additional assets;
and
(k) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal amount at any time
outstanding not exceeding 5% of Stockholders' Equity of the Company.
SECTION 5.08. Consolidations, Mergers and Sales of Assets. The Company will
not be a party to any merger or consolidation or sell, lease or otherwise
transfer all or substantially all of its Property, provided that the Company may
merge or consolidate with another corporation and may sell, lease or otherwise
transfer all or substantially all of its Property as an entirety to another
corporation if (i) the surviving or acquiring corporation (if other than the
Company) (A) is organized under the laws of the United States or a jurisdiction
thereof and (B) expressly assumes the covenants and obligations in this
Agreement and (ii) immediately after giving effect to such transaction, no
condition or event shall exist which constitutes an Event of Default and
Consolidated Tangible Net Worth is not less than $800,000,000.
SECTION 5.09. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrowers for general corporate purposes, which
includes the use by the Borrowers of such proceeds to support the issuance by it
of domestic commercial paper notes, and will not, in any event, be used for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
margin stock, within the meaning of Regulation U.
SECTION 5.10. Transactions with Affiliates. The Company will not directly
or indirectly engage in any transaction (including, without limitation, the
purchase, sale or exchange of assets or the rendering of any service) with any
Affiliate, except in the ordinary course of and pursuant to the reasonable
requirements of the Company's or such Affiliate's business and upon fair and
reasonable terms that are substantially the same as those which might be
obtained in an arm's length transaction at the time from Persons which are not
such an Affiliate or upon terms which would not materially and adversely affect
the ability of the Company to comply with its obligations under this Agreement;
41
provided, however, that taxes may be allocated among the Company and its
Affiliates in any manner consistent with Section 1552 (or any successor
provision) of the Internal Revenue Code and the regulations thereunder, general
and administrative expenses may be allocated among the Company and its
Affiliates in any manner consistent with Section 482 (or any successor
provision) of the Internal Revenue Code and the regulations thereunder, and
interest may be charged or credited to Affiliates in any reasonable manner not
inconsistent with the Internal Revenue Code and the regulations thereunder.
SECTION 5.11. Ownership of Credit Corporation. The Company will at all
times own, directly or indirectly, all outstanding capital stock of Credit
Corporation, free and clear of any Lien.
SECTION 5.12. Change in Rating. Promptly upon becoming aware of any actual
or proposed change in the rating by S&P or Xxxxx'x of the Company's outstanding
senior unsecured long-term debt securities, the Company shall give notice to the
Agent of such actual or proposed change.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) a Borrower shall fail to pay when due any principal of any
Loan or, within five days of the due date thereof, any interest on any
Loan, any fees or any other amount payable hereunder;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.07 through 5.11 inclusive;
(c) the Company shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clauses (a) or (b) above) for 30 days after notice thereof has been
given in accordance with Section 10.01 to the Company by the Agent at
the request of any Bank;
(d) any representation, warranty, certification or statement
made or deemed, pursuant to the terms hereof, to have been made by the
Company in this Agreement or in any certificate, financial statement or
42
other notice delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made or deemed to have been
made;
(e) the Company or any Subsidiary shall fail to make any
payment in respect of any Material Financial Obligations when due or
within any applicable grace period;
(f) any event or condition (other than an event or condition
which renders it unlawful for any Person to make, maintain or fund
extensions of credit comprising any Debt described in this subsection
(f)) shall occur which results in the acceleration of the maturity of
any Debt (which term shall, for purposes of this subsection (f),
exclude (1) clause (vi) of the definition of Debt set forth in Section
1.01 and (2) Debt of any Person that is not a Subsidiary of the Company
and which is Guaranteed by the Company or a Subsidiary, so long as
neither the Company nor such Subsidiary is in default with respect
thereto) of the Company or any Subsidiary greater than the Debt
Acceleration Threshold in aggregate principal amount;
(g) the Company or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its Property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered
43
against the Company or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) the Company or any Related Person shall fail to pay when
due (and not being contested in good faith) an amount or amounts
aggregating in excess of $5,000,000 which it shall have become liable
to pay to the PBGC, the Internal Revenue Service or the Department of
Labor or to a Multiemployer Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Benefit
Liabilities in excess of $50,000,000 (collectively, a "Material Plan")
shall be filed under Title IV of ERISA by the Company or any Related
Person, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of or to cause a trustee to be appointed to
administer any Material Plan; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which would cause the Company or any Related Person to incur a current
payment obligation in excess of $50,000,000; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or
(j) a final judgment or order for the payment of money in
excess of $10,000,000 not covered by insurance (as to which insurance
coverage there is delivered to the Agent an opinion of counsel
reasonably satisfactory to the Agent that such coverage applies to such
judgment or order and that the applicable insurance carrier has not
contested the payment thereof) shall be rendered against the Company or
any Material Subsidiary and such judgment or order shall continue
unsatisfied and not stayed, bonded, vacated or suspended by agreement
with the beneficiary thereof for a period of 60 days;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand,
44
protest or other notice of any kind, all of which are hereby waived by each
Borrower; provided that in the case of any of the Events of Default specified in
clause (g) or (h) above with respect to either Borrower, without any notice to
either Borrower or any other act by the Agent or the Banks, the Commitments
shall thereupon terminate and the Notes (together with accrued interest thereon)
shall become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the Company
under Section 6.01(c) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to the
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Xxxxxx Guaranty Trust Company of New
York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Xxxxxx Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with either Borrower or any Subsidiary or Affiliate of either Borrower
as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for either Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
45
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it or them in connection
herewith (i) with the consent or at the request of the Required Banks or (ii) in
the absence of its or their own gross negligence or willful misconduct. Neither
the Agent nor any of its affiliates nor any of their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of either
Borrower; (iii) the satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrowers) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with this Agreement or any action taken or omitted
by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by giving
notice thereof in accordance with Section 10.01 to the Banks and the Company.
Upon any
46
such resignation, the Borrowers, with the written consent of the Required Banks,
which consent shall not be unreasonably withheld, shall have the right to
appoint a successor Agent, which shall be one of the Banks. If no successor
Agent shall have been so appointed by the Borrowers, and shall have accepted
such appointment, within 30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to the Agent for its own
account fees in the amounts and at the times previously agreed upon between the
Borrower and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Fixed Rate Borrowing
(except a Money Market Absolute Rate Borrowing):
(a) the Agent is advised by the Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the Agent that
the Adjusted CD Rate or the London Interbank Offered Rate, as the case
may be, as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding their CD Loans or Euro-Dollar
Loans, as the case may be, for such Interest Period,
47
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless the
Borrower notifies the Agent at least two Domestic Business Days before the date
of any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing pursuant to Article II and (ii) if such Fixed Rate Borrowing
is a Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to
either Borrower and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the Company, whereupon
until such Bank notifies the Company and the Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank to make
Euro-Dollar Loans to such Borrower shall be suspended. Before giving any notice
to the Agent pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to such Borrower to maturity and shall so specify in such notice, such Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, such Borrower shall borrow a Base Rate
Loan (or, if such Borrower so elects by at least one Domestic Business Day's
notice to the Agent and such Bank, such Borrower shall borrow a CD Loan) in an
equal
48
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan or CD Loan, as the case
may be.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after (x) the
date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office)
to any tax, duty or other charge with respect to its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans, or shall change
the basis of taxation of payments to any Bank (or its Applicable
Lending Office) of the principal of or interest on its Fixed Rate Loans
or any other amounts due under this Agreement in respect of its Fixed
Rate Loans or its obligation to make Fixed Rate Loans (except for
changes in the rate of tax on the overall net income of such Bank or
its Applicable Lending Office imposed by the jurisdiction in which such
Bank's principal executive office or Applicable Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit, insurance assessment or similar requirement
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding (A)
with respect to any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage or Assessment Rate and (B) with
respect to any Euro-Dollar Loan any such requirement with respect to
which such Bank is entitled to compensation during the relevant
Interest Period under Section 2.16) against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable Lending
Office) or on the United States
49
market for certificates of deposit or the London interbank market any
other condition affecting its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the Company shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If any Bank shall have determined that, on or after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth in
reasonable detail the calculation of the additional amount or amounts to be paid
to it hereunder shall be presumed correct unless and until it is shown to be in
error. In determining such amount, such Bank may use any reasonable averaging
and attribution
50
methods. If any Bank demands compensation under Section 8.03(a), the affected
Borrower may at any time, upon at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, prepay in full each then outstanding CD
Loan or Euro-Dollar Loan, as the case may be, of such Bank, together with
accrued interest thereon to the date of prepayment. Concurrently with prepaying
each such CD Loan or Euro-Dollar Loan, as the case may be, of such Bank, such
Borrower shall borrow a Base Rate Loan (or, if such Borrower shall so elect in
its notice of prepayment, such Borrower shall borrow (i) if the Loan being
prepaid is a CD Loan, a Euro-Dollar Loan and (ii) if the Loan being prepaid is a
Euro-Dollar Loan, a CD Loan) in an equal principal amount from such Bank for an
Interest Period coinciding with the remaining term of the Interest Period
applicable to such CD Loan or Euro-Dollar Loan being prepaid, and such Bank
shall make such a Base Rate Loan, CD Loan or Euro-Dollar Loan, as the case may
be.
SECTION 8.04. Substitute Loans. If (i) the obligation of any Bank to make
Euro-Dollar Loans to either Borrower has been suspended pursuant to Section 8.02
or (ii) any Bank has demanded compensation under Section 8.03(a) and the
Borrower shall, by at least five Euro-Dollar Business Days' prior notice to such
Bank through the Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Company that
the circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans to such Borrower which would otherwise be made
by such Bank as CD Loans or Euro-Dollar Loans, as the case may be,
shall be made instead as Base Rate Loans, or if such Borrower shall so
elect in the Notice of Borrowing, CD Loans or Euro-Dollar Loans
(whichever type is not affected by such circumstances) for an Interest
Period coincident with the related Fixed Rate Borrowing, and
(b) after each of its CD Loans or Euro-Dollar Loans, as the
case may be, to such Borrower has been repaid, all payments of
principal which would otherwise be applied to repay such Fixed Rate
Loans shall be applied to repay its Substitute Loans instead.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03, the Company shall have the
right, with the assistance of the Agent, to seek a
51
mutually satisfactory substitute bank or banks (which may be one or more of the
Banks) to purchase the Notes and assume the Commitment of such Bank. The
purchase price for such Notes shall be an amount equal to the principal amount
thereof together with accrued interest thereon, accrued amounts (if any) for the
account of such Bank pursuant to Sections 2.16 and 8.03 and such amount (if any)
as such Bank would be entitled to pursuant to Section 2.14 in respect of the
prepayment of its Notes on such date.
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by Credit
Corporation pursuant to this Agreement, and the full and punctual payment of all
other amounts payable by Credit Corporation under this Agreement. Upon failure
by Credit Corporation to pay punctually any such amount, the Company shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Credit Corporation under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of Credit Corporation under this
Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of Credit Corporation, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting Credit Corporation or its assets or
any resulting release or discharge of any obligation of Credit
52
Corporation contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against Credit Corporation, the Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
Credit Corporation for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by Credit Corporation of the principal of or interest on any
Note or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
Credit Corporation, the Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of or defense
to the Company's obligations hereunder.
SECTION 9.03. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Company's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
interest on the Notes and all other amounts payable by the Company and Credit
Corporation under this Agreement shall have been paid in full. If at any time
any payment of the principal of or interest on any Note or any other amount
payable by Credit Corporation under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of Credit Corporation or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated at such time as though such payment
had been due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Credit Corporation or any other Person.
53
SECTION 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
Credit Corporation with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by Credit Corporation in respect thereof, in any
bankruptcy, insolvency or similar proceeding involving Credit Corporation as
debtor commencing within one year after the making of any payment by Credit
Corporation under this Agreement or its Notes.
SECTION 9.06. Stay of Acceleration. In the event that acceleration of the
time for payment of any amount payable by Credit Corporation, under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of Credit Corporation, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on demand by the Agent made at the request of the Required
Banks.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of either Borrower or the Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (y) in the case of any Bank, at
its address, facsimile number or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, upon receipt or (iv) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or Article VIII shall not be
effective until received.
54
SECTION 10.02. No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Documentary Taxes; Indemnification. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Agent, in connection
with the preparation of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all reasonable out-of-pocket expenses incurred by the
Agent and each Bank, including (without duplication) the fees and disbursements
of outside counsel and the reasonably allocated cost of inside counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom. The Company shall indemnify
each Bank against any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution and delivery of
this Agreement, or any Note.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be reasonably incurred by any Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) relating to
or arising out of this Agreement; provided that no Indemnitee shall have the
right to be indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction. It is understood
(except as provided below) that the Company shall not, in connection with any
such claim, or separate but substantially similar or related claims in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys for
all such Indemnitees which firm shall be designated by the Agent. Any
Indemnitees shall have the right to retain its own counsel, but the fees and
expenses of such counsel (other than the firm designated by the Agent as
aforesaid) shall be at the expense of such Indemnitee unless (i) the
55
Company on the one hand, and such Indemnitee on the other shall have mutually
agreed to the retention of such counsel or (ii) the representation of such
Indemnitee by the same counsel representing the Agent, the Banks or any other
party would in the reasonable view of such Indemnitee be inconsistent with or
adverse to the interests of such Indemnitee. The Company shall not be liable for
any settlement of any such claim effected without its written consent, which
shall not be unreasonably withheld.
SECTION 10.04. Sharing of Set-Offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of a Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 10.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrowers and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided that
no such amendment or waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any fees hereunder,
(iii) postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder, (iv) postpone the date fixed for termination of any
Commitment, or (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or
56
the number of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement.
Neither an assignment pursuant to Section 10.06 nor a substitution pursuant to
Section 8.05 constitutes an amendment subject to the provisions of this Section
10.05.
SECTION 10.06. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither Borrower may assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Money Market
Loans or, upon notice to the Company, in its Committed Loans. In the event of
any such grant by a Bank of a participating interest to a Participant, whether
or not upon notice to the Borrowers and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrowers
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii), (iii) or (iv) of Section 10.05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Section 2.16 with respect to its participating
interest to the same extent as a Bank. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) With the prior written consent of the Company and the Agent, any Bank
may at any time assign to one or more banks or other institutions (each an
"Assignee") all, or a proportionate part (equivalent to an initial Commitment of
not less than $10,000,000 and not exceeding, together with all other assignments
by such transferor Bank and its affiliate transferees to non-affiliates, 50% of
its initial Commitment, except in any case as the Company and the Agent
57
may otherwise agree) of all, of its rights and obligations under this Agreement
and the Notes, and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement in substantially the form of
Exhibit H hereto executed by such Assignee and such transferor Bank; provided
that if an Assignee is an affiliate of such transferor Bank, no such consent
shall be required; and provided further that such assignment may, but need not,
include rights of the transferor Bank in respect of outstanding Money Market
Loans. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Notes to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) (i) No Assignee or other transferee of any Bank's rights shall be
entitled to receive any greater payment under Section 8.03 than such Bank would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Company's prior written consent or by reason of
the provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Applicable Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(ii) No Bank shall be entitled to additional interest under Section 2.16 on
any portion of any Euro-Dollar Loan with respect to which it has granted a
participation pursuant to subsection (b) above.
(f) If any Reference Bank assigns its Note to an unaffiliated institution,
or if the Commitment of any Reference Bank is terminated pursuant to Section
2.12 or 8.05, the Agent shall, with the consent of the Company and
58
the Required Banks, appoint another Bank to act as a Reference Bank hereunder.
SECTION 10.07. Collateral. Each of the Banks represents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.08. Governing Law. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 10.09. Counterparts; Integration. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXX-XxXXX CORPORATION
By /s/ Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
By /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Xxxx-XxXxx Center
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Treasurer
Telex No.: 747128
Telecopy No.: 000-000-0000 (automatic)
000-000-0000 (manual)
XXXX-XxXXX CREDIT CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Xxxx-XxXxx Center
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Treasurer
Telex No.: 747128
Telecopy No.: 000-000-0000 (automatic)
000-000-0000 (manual)
Commitments
$50,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxx X. Xxxx, Xx.
Title: Vice President
60
$35,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ J. Xxxxxxx Xxxxxxx
Title: Senior Vice President
$35,000,000 CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxxxx
Title: Vice President
$35,000,000 TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By /s/ Xxxx X. Xxxx
Title: Senior Vice President
$35,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxx
Title: Vice President
$25,000,000 MELLON BANK, N.A.
By /s/ A. Xxxx Xxxxx
Title: Senior Vice President
$25,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxxxx X. Xxxxx
Title: Senior Vice President
61
$25,000,000 ROYAL BANK OF CANADA
By /s/ Xxxxxxx X. Xxxxxx
Title: Manager
$20,000,000 THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
$20,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxx X. Xxxxx, Xx.
Title: Director
$20,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxxx X. Xxxxx
Title: Senior Vice President
Total Commitments
$325,000,000
=================
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxxxx X. Xxxx, Xx.
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Loan Department
Telex number: 177615 MGT UT
Telecopy No.: 000-000-0000
62
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any day
are the respective percentages set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
====================================================================
Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxx I II III IV
====================================================================
Euro-Dollar
Margin
If Utiliza-
tion is less
than 50% 0.200% 0.235% 0.275% 0.500%
If Utiliza-
tion equals
or exceeds
50% 0.250% 0.285% 0.325% 0.500%
--------------------------------------------------------------------
CD Margin
If Utiliza-
tion is
less than
50% 0.325% 0.360% 0.400% 0.625%
If Utiliza-
tion equals
or exceeds
50% 0.375% 0.410% 0.450% 0.625%
--------------------------------------------------------------------
Facility Fee
Rate 0.100% 0.115% 0.175% 0.375%
====================================================================
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the Company's
long-term debt is rated A+ or higher by S&P and A1 or higher by Xxxxx'x.
"Level II Status" exists at any date if, at such date, (i) the Company's
long-term debt is rated A- or higher
by S&P and A3 or higher by Xxxxx'x and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the Company's
long-term debt is rated BBB or higher by S&P and Baa2 or higher by Xxxxx'x and
(ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, no other Status
exists.
"Status" refers to the determination of which of Level I Status, Level II
Status, Level III Status or Level IV Status exists at any date.
"Utilization" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the aggregate outstanding principal amount of the
Loans at such date, after giving effect to any borrowing or payment on such
date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Utilization
for each date on or after the date of such termination shall be deemed to be
greater than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
If the Company's debt securities are rated by only one of Xxxxx'x and S&P,
Status shall be determined based on the rating assigned by that rating agency.
2
EXHIBIT A
NOTE
New York, New York
August 25, 1994
For value received, [XXXX-XxXXX CORPORATION] [XXXX-XxXXX CREDIT
CORPORATION], a Delaware corporation (the "Borrower"), promises to pay to the
order of (the "Bank"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Loan made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities thereof and
all repayments of the principal thereof shall be recorded by the Bank and, if
the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of August 25, 1994 among Xxxx-
XxXxx Corporation, Xxxx-XxXxx Credit Corporation, the banks listed on the
signature pages thereof and Xxxxxx Guaranty Trust Company of New York, as Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
[Xxxx-XxXxx Corporation has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this note.]**
[XXXX-XxXXX CORPORATION]
[XXXX-XxXXX CREDIT
CORPORATION]
By________________________
Title:
--------
**To be deleted in the case of Notes executed and
delivered by Xxxx-XxXxx Corporation.
2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
3
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Xxxxxx Guaranty Trust Company of New York
(the "Agent")
From: [Xxxx-XxXxx Corporation]
[Xxxx-XxXxx Credit Corporation]
Re: Credit Agreement (the "Credit Agreement")
dated as of August 25, 1994 among Xxxx-XxXxx
Corporation, Xxxx-XxXxx Credit Corporation,
the Banks listed on the signature pages
thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount*** Interest Period****
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
--------
***Amount must be $10,000,000 or a larger multiple of $1,000,000. ****Not
less than one month (LIBOR Auction) or not less than 7 days (Absolute Rate
Auction), subject to the provisions of the definition of Interest Period.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[XXXX-XxXXX CORPORATION]
[XXXX-XxXXX CREDIT
CORPORATION]
By________________________
Title:
2
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Xxxx-
XxXxx Corporation] [Xxxx-XxXxx Credit
Corporation] (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of
August 25, 1994 among Xxxx-XxXxx Corporation, Xxxx-XxXxx Credit Corporation, the
Banks parties thereto and the undersigned, as Agent, we are pleased on behalf of
the Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: Xxxxxx Guaranty Trust Company of New York,
as Agent
Re: Money Market Quote to [Xxxx-XxXxx
Corporation] [Xxxx-XxXxx Credit
Corporation] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
----------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for $5,000,000 or a larger
multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of August 25, 1994 among Xxxx-XxXxx Corporation, Xxxx-XxXxx Credit
Corporation, the Banks listed on the signature pages thereof and yourselves, as
Agent, irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
----------
*** Not less than one month or not less than 7 days, as specified in the related
Invitation. No more than five bids are permitted for each Interest Period. ****
Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS". ***** Specify rate of interest per annum
(to the nearest 1/10,000th of 1%).
2
EXHIBIT E
OPINION OF GENERAL
COUNSEL OF THE COMPANY
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I am General Counsel of Xxxx-XxXxx Corporation (the "Company") and am
familiar with the Credit Agreement (the "Credit Agreement") dated as of August
25, 1994 among the Company, Xxxx-XxXxx Credit Corporation ("Credit Corporation")
(each of the Company and Credit Corporation singly, a "Borrower" and,
collectively, "Borrowers"), the banks listed on the signature pages thereof and
Xxxxxx Guaranty Trust Company of New York, as Agent. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being rendered to
you at the request of the Borrowers pursuant to Section 3.01(c) of the Credit
Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. Each of the Borrowers is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, and has all corporate
powers required to carry on its business as now conducted.
2. Each of the Borrowers has all material governmental licenses,
authorizations, consents and
approvals required to carry on its business as now conducted and which, if not
obtained, could reasonably be expected to have a material adverse effect on the
business or operations of the Company and its Subsidiaries, considered as a
whole.
3. The execution, delivery and performance by each Borrower of the Credit
Agreement and its Notes are within the corporate powers of such Borrower, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of either
Borrower or, to the best of my knowledge, of any agreement, judgment,
injunction, order, decree or other instrument binding upon either Borrower or
result in the creation or imposition of any Lien on any asset of either Borrower
or any of its Subsidiaries.
4. The Credit Agreement constitutes a valid and binding agreement of each
of the Company and Credit Corporation, and the Notes of each Borrower constitute
its valid and binding obligations in each case enforceable in accordance with
their respective terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
5. Except as may have been disclosed in writing to the Banks prior to the
signing of the Credit Agreement, there is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official, which involves any substantial risk of an
adverse decision which would result in any material adverse effect on the
business, consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole, or
which involves any material risk of an adverse decision which would draw into
question the validity of the obligations of either Borrower under the Credit
Agreement or the Notes of such Borrower.
6. Each of the Material Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers required to carry on its business as
now conducted. Each Material Subsidiary has all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and which, if not obtained, could reasonably be expected to have a
material adverse
2
effect on the business or operations of the Company and its Subsidiaries
considered as a whole.
I am a member of the Bar of the State of Oklahoma, and the foregoing
opinion is limited to the laws of the State of Oklahoma, the General Corporation
Law of the State of Delaware and the Federal laws of the United States of
America. Inasmuch as the Credit Agreement and the Notes are governed by the law
of the State of New York, I have assumed for purposes of the foregoing opinion
that such law is the same as the law of the State of Oklahoma. I have not been
called upon to, and accordingly do not, express any opinion on the effect (if
any) of any law of any jurisdiction (except the State of Oklahoma) in which any
Bank is located which limits the rate of interest that such Bank may charge or
collect.
Very truly yours,
3
EXHIBIT F
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of August 25, 1994 among Xxxx-XxXxx Corporation, a
Delaware corporation, Xxxx-XxXxx Credit Corporation, a Delaware corporation, the
banks listed on the signature pages thereof (the "Banks") and Xxxxxx Guaranty
Trust Company of New York, as Agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.01(d) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by each Borrower of the Credit
Agreement and its Notes are within such Borrower's corporate powers and have
been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of each
of the Company and Credit Corporation, and each Note of each Borrower
constitutes a valid and binding obligation of such Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Bank is located which limits the rate of interest that such Bank may
charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without our prior written consent.
Very truly yours,
2
EXHIBIT G
FORM OF AUDITOR'S CERTIFICATE
To Xxxx-XxXxx Corporation:
We have examined the consolidated balance sheet of Xxxx-XxXxx Corporation
(a Delaware corporation), and subsidiary companies as of December 31, 19__ and
19__, and the related consolidated statements of income, retained earnings and
cash flows for each of the three years in the period ended December 31, 19__,
and have issued our report thereon dated February __, 19__. Our examination was
made in accordance with generally accepted auditing standards and, accordingly,
included such tests of the accounting records and such other auditing procedures
as we considered necessary in the circumstances.
We have read the credit agreement (the "Credit Agreement") dated as of
August 25, 1994 among Xxxx-XxXxx Corporation (the "Company"), Xxxx-XxXxx Credit
Corporation, the banks listed on the signature pages thereof and Xxxxxx Guaranty
Trust Company of New York, as Agent, particularly Articles V and VI. These
articles contain certain covenants of the Company relative to certain financial
conditions and describe events of default relative to such covenants. We have
also read the accompanying officer's certificate prepared by your chief
accounting officer described in Section 5.01(c) of the Credit Agreement.
In connection with our examination, nothing came to our attention that
caused us to believe that you were in default with any of the provisions of
Article VI of the Credit Agreement insofar as they pertain to accounting
matters. It should be noted that our examination was not directed primarily
toward obtaining knowledge of noncompliance.
Very truly yours,
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), [XXXX-XxXXX CORPORATION (the "Company") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent")].
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Credit Agreement dated as of August 25, 1994 among the Company,
Xxxx-XxXxx Credit Corporation, the Assignor and the other Banks party thereto,
as Banks, and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $______________;
WHEREAS, Committed Loans made by the Assignor under the Credit Agreement in
the aggregate principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the Assigned Amount, and
the Assignee hereby accepts such assignment from the Assignor and assumes all of
the obligations of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of the corresponding
portion of the principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee[, the Company and the Agent] and the payment of the
amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Bank under the Credit Agreement with a Commitment
in an amount equal to the Assigned Amount, and (ii) the Commitment of the
Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.***** It
is understood that commitment and/or facility fees in respect of the Assigned
Amount accrued to the date hereof are for the account of the Assignor and such
fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to execute and deliver a Note and to cause Credit Corporation to
execute
--------
***** Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of any Borrower, or the
validity and enforceability of the obligations of any Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By_________________________
Title:
3
XXXX-XxXXX CORPORATION
By__________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
4
CONFORMED COPY
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 4,
1996 among XXXX-XxXXX CORPORATION, XXXX-XxXXX CREDIT CORPORATION, the BANKS
listed on the signature pages hereof (the "Banks") and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, certain of the parties hereto have heretofore entered
into a Credit Agreement dated as of August 25, 1994 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set
forth herein and to restate the Agreement in its entirety to read as set forth
in the Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the date hereof refer
to the Agreement as amended and restated hereby. The term "Notes" defined in the
Agreement shall include from and after the date hereof the New Note (as defined
below).
SECTION 2. Amendment of Termination Date. The definition of
"Termination Date" in Section 1.01 of the Agreement is amended to read in its
entirety as follows:
"Termination Date" means December 4, 2001, or, if such day is not
a Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day, unless
such Euro-Dollar Business Day falls in another calendar month, in which case the
Termination Date shall be the next preceding Euro-Dollar Business Day.
SECTION 3. Amendment of Sections 4.04 and 4.05. Each reference
to "1993" in Sections 4.04 and 4.05 of the Agreement is amended to read "1995."
SECTION 4. Changes in Commitments. With effect from and including
the date this Amendment and Restatement becomes effective in accordance with
Section 8 hereof, (i) each Person listed on the signature pages hereof which is
not a party to the Agreement (a "New Bank") shall become a Bank party to the
Agreement and (ii) the Commitment of each Bank shall be the amount set forth
opposite the name of such Bank on the signature pages hereof. Any Bank whose
Commitment is changed to zero shall upon such effectiveness cease to be a Bank
party to the Agreement, and all accrued fees and other amounts payable under the
Agreement for the account of such Bank shall be due and payable on such date;
provided that the provisions of Sections 8.03 and 9.03 of the Agreement shall
continue to inure to the benefit of each such Bank.
SECTION 5. Amendment of Pricing Schedule. The Pricing Schedule
is amended to read in its entirety as set forth in Exhibit I to this Amendment
and Restatement.
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(a) no Default has occurred and is continuing; and
(b) each representation and warranty of the Borrower set forth in
the Agreement is true and correct as though made on and as of this date.
SECTION 7. Governing Law. This Amendment and Restatement shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 8. Counterparts; Effectiveness. This Amendment and
Restatement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Amendment and Restatement shall become effective
as of the date hereof when (i) the Agent shall have received duly executed
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, the
Agent shall have received telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party); (ii) the Agent
shall have received a duly executed Note for each of the New Banks (a "New
Note"), dated on or before the date of effectiveness hereof and otherwise in
compliance with Section 2.05 of the Agreement; (iii) the Agent shall have
received an opinion of the General Counsel of the Borrower (or such other
counsel for the Borrower as may be acceptable to the Agent), substantially in
the form of Exhibit E to the Agreement with reference to the New Notes, this
Amendment and Restatement and the Agreement as amended and restated hereby; and
(iv) the Agent shall have received all documents it may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of the Agreement as amended and restated hereby the New Notes and any
other matters relevant hereto, all in form and substance satisfactory to the
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
XXXX-XxXXX CORPORATION
By /s/ Xxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
By /s/ Xxxx X. Xxxx
Title: Vice President and Treasurer
XXXX-XxXXX CREDIT CORPORATION
By /s/ Xxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
Commitments
$55,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxx Xxxxxxxxx
Title: Vice President
$40,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxx Xxxxxxxx
Title: Corporate Banking Officer
$35,000,000 CITIBANK, N.A.
By /s/ Arezod Xxxxxx
Title: Assistant Vice President
$35,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxx X. Xxxxxx
Title: Vice President
$35,000,000 ROYAL BANK OF CANADA
By /s/ Xxxxx X. Xxxxxxxx
Title: Manager
$35,000,000 TEXAS COMMERCE BANK NATIONAL
By /s/ Xxxxx X. Xxxxxx
Title: Senior Vice President
$25,000,000 THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
$25,000,000 MELLON BANK, N.A.
By /s/ E. Marc Culnod Jr.
Title: First Vice President
$20,000,000 UMB, OKLAHOMA BANK
By /s/ Xxxxx Xxxxxxxx
Title: Senior Vice President
$20,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxx X. Xxxx
Title: Vice President
$0 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxxx X. Xxxxx
Title: Vice President
$0 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxx X. Xxxxx
Title: Director
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxx Xxxxxxxxx
Title: Vice President
EXHIBIT I
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any
day are the respective percentages set forth below in the applicable row under
the column corresponding to the Status that exists on such day:
Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxx I II III IV V VI VII
----------- -------- --------- -------- --------- --------- -------- -------
Euro-Dollar 0.13% 0.15% 0.17% 0.20% 0.225% 0.30% 0.50%
Margin
----------- -------- --------- -------- --------- --------- -------- -------
CD Margin 0.255% 0.275% 0.295% 0.325% 0.35% 0.425% 0.625%
----------- -------- --------- -------- --------- --------- -------- -------
Facility 0.07% 0.075% 0.08% 0.10% 0.125% 0.15% 0.25%
Fee Rate
----------- -------- --------- -------- --------- --------- -------- -------
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraph of this schedule:
"Level I Status" exists at any date if, at such date, the
Company's long-term debt is rated A+ or higher by S&P or A1 or higher by
Xxxxx'x.
"Level II Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated A or higher by S&P or A2 or higher by Xxxxx'x
and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated A- or higher by S&P or A3 or higher by Xxxxx'x
and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated BBB+ or higher by S&P and Baa1 or higher by
Xxxxx'x and (ii) none of Level I Status, Level II Status or Level III Status
exists.
"Level V Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated BBB or higher by S&P and Baa2 or higher by
Xxxxx'x and (ii) none of Level I Status, Level II Status, Level III Status or
Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated BBB- by S&P and Baa3 by Xxxxx'x and (ii) none
of Level I Status, Level II Status, Level III Status, Level IV Status or Level V
Status exists.
"Level VII Status" exists at any date if, at such date, no other
Status exists.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status, Level VI
Status or Level VII Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule
are those assigned to the senior unsecured long-term debt securities of the
Company without third-party credit enhancement, and any rating assigned to any
other debt security of the Company shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date.
If the Company's debt securities are rated by only one of Xxxxx=s
and S&P, Status shall be determined based on the rating assigned by that rating
agency. For purposes of determining if Level I Status, Level II Status or Level
III Status exists, if the Company is split-rated and the ratings differential is
one level, the higher of the two ratings will apply (e.g., A-/Baa1 results in
Level III Status, but A-/Baa2 results in Level V Status). If the Company is
split-rated and the ratings differential is more than one level, the rating at
the midpoint (or the higher of the two intermediate ratings if there is no
midpoint) will apply (e.g., A+/A3 results in Level II Status).
CONFORMED COPY
WAIVER AND AMENDMENT NO. 1 TO
AMENDED AND RESTATED CREDIT AGREEMENT
WAIVER AND AMENDMENT NO. 1 dated as of January 1, 1998 to the Amended
and Restated Credit Agreement (the "Restated Agreement") dated as of December 4,
1996 among Xxxx-XxXxx Corporation (the "Company"), Xxxx-XxXxx Credit Corporation
("Credit Corporation"), the Banks listed on the signature pages thereof (the
"Banks") and Xxxxxx Guaranty Trust Company of New York, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, Credit Corporation desires to consummate a merger, effective as
of the date hereof, with Xxxx-XxXxx Credit LLC, a Delaware limited liability
company ("Credit LLC"), in which Credit LLC will be the surviving company and
will assume all of Credit Corporation=s obligations, including, without
limitation, all obligations under the Restated Agreement (the "Merger");
WHEREAS, in connection with such Merger, the parties hereto desire to
waive and amend certain provisions of the Restated Agreement as set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Restated Agreement shall have the meaning assigned to such term in the Restated
Agreement. Each reference to Ahereof", Ahereunder", Aherein" and Ahereby" and
each other similar reference and each reference to Athis Agreement" and each
other similar reference contained in the Restated Agreement shall from and after
the date hereof refer to the Restated Agreement as amended hereby. The term
ANotes@ defined in the Restated Agreement shall include from and after the date
hereof the LLC Notes (as defined below).
SECTION 2. Waiver. Notwithstanding that Section 5.04 of the Restated
Agreement requires each Material Subsidiary to preserve and keep in full force
and effect its corporate existence, each of the Banks hereby agrees to waive
such requirement insofar as, and only to the extent that, such requirement
applies to Credit Corporation. The parties hereto agree that the occurrence of
the Merger shall not result in a Default under the Restated Agreement.
SECTION 3. Amendment of Section 1.01. (a) The following new definitions
are added in alphabetical order to Section 1.01 of the Restated Agreement:
"Credit LLC" means Credit Corporation, together with its successors
(including Xxxx-XxXxx Credit LLC, a Delaware limited liability company, upon
consummation of the Merger).
"Merger" means the merger of Credit Corporation with and into Xxxx-XxXxx
Credit LLC (with Xxxx-XxXxx Credit LLC as the surviving Person) pursuant to the
Merger Agreement, effective as of January 1, 1998.
"Merger Agreement" means the Agreement of Merger dated as of December
29, 1997 between Credit Corporation and Xxxx-XxXxx Credit LLC.
(b) The definition of "Credit Corporation" set forth in Section 1.01 of
the Restated Agreement is amended by deleting the phrase ", and its successors."
(c) Each reference to "Credit Corporation" in the definitions of
"Borrower", "Lien" and "Material Subsidiary" set forth in Section 1.01 of the
Restated Agreement is amended to read "Credit LLC."
SECTION 4. Amendment of Section 4.01. Section 4.01 of the Restated
Agreement is amended to read in its entirety as follows:
SECTION 4.01. Corporate and Limited Liability Company Existence
and Power. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware,
and Credit LLC is a limited liability company duly organized,
validly existing and in good standing under the laws of Delaware.
Each of the Company and Credit LLC has all corporate or limited
liability company power, as the case may be, and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted which, if not
obtained, could reasonably be expected to have a material adverse
effect of the business or operations of the Company and its
Subsidiaries considered as a whole.
SECTION 5. Amendment of Section 4.02. Section 4.02 of the Restated
Agreement is amended to read in its entirety as follows:
SECTION 4.02. Corporate, Limited Liability Company and
Governmental Authorization; No Contravention. The execution,
delivery and performance by the Company and Credit LLC of this
Agreement and the Notes are within such Borrower=s corporate or
limited liability company powers, as the case may be, have been
duly authorized by all necessary corporate or limited liability
company action, as the case may be, require no approval of or
filing with any governmental body, agency or official and do not
contravene or constitute a default under any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws or certificate of formation or limited
liability company agreement of such Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon such Borrower or result in the creation or imposition of any
mortgage, security interest or other lien or encumbrance on any
asset of such Borrower or any of its Subsidiaries.
SECTION 6. Amendment of Section 4.03. The reference to "Credit
Corporation" in Section 4.03 of the Restated Agreement is amended to read
"Credit LLC."
SECTION 7. Amendment of Section 4.09. Section 4.09 of the Restated
Agreement is amended to read in its entirety as follows:
SECTION 4.09. Subsidiaries. Each of the Material Subsidiaries is
a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization, and has all corporate or limited
liability company powers, as the case may be, required to carry
on its business as now conducted. Each Material Subsidiary has
all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and which, if
not obtained, could reasonably be expected to have a material
adverse effect on the business or operations of the Company and
its Subsidiaries considered as a whole.
SECTION 8. Amendment of Section 5.01 (a). Each reference to "Credit
Corporation" in Section 5.01(a) of the Restated Agreement is amended to read
"Credit LLC."
SECTION 9. Amendment of Section 5.03. Each reference to "corporations"
in Section 5.03 of the Restated Agreement is amended to read "companies."
SECTION 10. Amendment of Section 5.04. Section 5.04 of the Restated
Agreement is amended by (i) deleting the parenthetical "(other than Credit
Corporation)" and substituting therefor "(other than Credit LLC)"; and (ii)
amending each reference to "corporate existence" to read "corporate or limited
liability company existence, as the case may be."
SECTION 11. Amendment of Section 5.11. Section 5.11 of the Restated
Agreement is amended to read in its entirety as follows:
SECTION 5.11. Ownership of Credit LLC. The Company will at all
times (i) be the sole member of Credit LLC and (ii) own, directly
or indirectly, all outstanding limited liability company
interests and other equity securities of Credit LLC, free and
clear of any Lien.
SECTION 12. Amendment of Sections 9.01, 9.02, 9.03, 9.04, 9.05 and 9.06.
Each reference to "Credit Corporation" in Sections 9.01, 9.02, 9.03, 9.04, 9.05
and 9.06 of the Restated Agreement is amended to read "Credit LLC."
SECTION 13. Assumption of Obligations by Credit LLC. With effect from
and including the date this Waiver and Amendment No. 1 becomes effective in
accordance with Section 17 hereof, (i) Credit LLC shall be a party to the
Restated Agreement and (ii) Credit LLC expressly assumes, and agrees to perform
and discharge, all of the obligations and liabilities of Credit Corporation
under the Restated Agreement.
SECTION 14. Representations and Warranties. Each Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(a) no Default has occurred and is continuing; and
(b) each representation and warranty of such Borrower set forth in the
Restated Agreement is true and correct as though made on and as of this date.
SECTION 15. Governing Law. This Waiver and Amendment No. 1 shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Effect of Waiver and Amendment. Except as expressly set
forth herein, this Waiver and Amendment No. 1 shall not constitute a waiver or
amendment of any term or condition of the Restated Agreement, and all such terms
and conditions shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
SECTION 17. Counterparts; Effectiveness. This Waiver and Amendment No. 1
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Waiver and Amendment No. 1 shall become effective as of the
date hereof when (i) the Agent shall have received duly executed counterparts
hereof signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, the Agent shall have
received telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party); (ii) the Agent shall have
received a Note duly executed by Credit LLC for each of the Banks (collectively,
the "LLC Notes"), dated on or before the date of effectiveness hereof and
otherwise in compliance with Section 2.05 of the Restated Agreement; (iii) the
Agent shall have received an opinion of the General Counsel of the Company (or
such other counsel for the Borrower as may be acceptable to the Agent),
substantially in the form of Exhibit E to the Restated Agreement (and expressly
including an opinion under the Delaware Limited Liability Company Act) with
reference to Credit LLC, the LLC Notes, this Waiver and Amendment No. 1 and the
Restated Agreement as amended hereby; and (iv) the Agent shall have received all
documents it may reasonably request relating to the existence of Credit LLC, the
corporate and limited liability company authority for and the validity of the
Restated Agreement as amended hereby, the LLC Notes and any other matters
relevant hereto, all in form and substance satisfactory to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment No. 1 to be duly executed by their respective authorized officers as
of the day and year first above written.
XXXX-XxXXX CORPORATION
By /s/ Xxxx X. Xxxxxxx
Title: Executive Vice President
By /s/ Xxxx X. Xxxx
Title: Vice President
XXXX-XxXXX CREDIT LLC, as successor
in interest to Xxxx-XxXxx Credit Corporation
By /s/ Xxxx X. Xxxxxxx
Title: Executive Vice President
000 Xxxxxx X. Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx X. Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxx X. Xxxxxxx
Title: Authorized Agent
CITIBANK, N.A.
By /s/ Xxxx Xxxxxxxxx Packard
Title: Assistant Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxx X. Xxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxx X. Xxxxxxxx
Title: Manager
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By /s/ Xxxxx X. German
Title: Senior Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President
UMB OKLAHOMA BANK
By /s/ Xxxxx Xxxxxxxx
Title: Executive Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxxx X. Xxxxx
Title: Vice President
