$900,000,000
COMPETITIVE ADVANCE,
REVOLVING CREDIT FACILITY AND TERM LOAN AGREEMENT
Dated as of August 26, 1997
among
ETHYL CORPORATION,
THE BANKS NAMED HEREIN,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
Page
ARTICLE I Definitions 1
SECTION 1.01. Defined Terms. 1
SECTION 1.02. Terms Generally. 15
ARTICLE II The Credits 15
SECTION 2.01. Commitments. 15
SECTION 2.02. Loans. 16
SECTION 2.03. Competitive Bid Procedure. 18
SECTION 2.04. Committed Borrowing Procedure. 20
SECTION 2.05. Refinancings. 21
SECTION 2.06. Fees. 21
SECTION 2.07. Notes; Repayment of Loans. 22
SECTION 2.08. Interest on Loans. 23
SECTION 2.09. Additional Interest; Alternate Rate of Interest. 23
SECTION 2.10. Termination, Reduction and Extension of Commitments. 24
SECTION 2.11. Prepayment of Loans. 25
SECTION 2.12. Reserve Requirements; Change in Circumstances. 26
SECTION 2.13. Change in Legality. 28
SECTION 2.14. Indemnity. 28
SECTION 2.15. Pro Rata Treatment, etc. 29
SECTION 2.16. Payments. 29
SECTION 2.17. Taxes. 30
SECTION 2.18. Certain Bank Obligations. 33
ARTICLE III Representations and Warranties 33
SECTION 3.01. Organization, Corporate Powers. 34
SECTION 3.02. Authorization. 34
SECTION 3.03. Governmental Approval. 34
SECTION 3.04. Financial Statements. 34
SECTION 3.05. No Material Adverse Change. 35
SECTION 3.06. Subsidiaries. 35
SECTION 3.07. Litigation. 35
SECTION 3.08. Tax Returns. 35
SECTION 3.09. Properties. 36
SECTION 3.10. Employee Benefit Plans. 36
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act. 36
SECTION 3.12. Federal Reserve Regulations. 37
SECTION 3.13. No Material Misstatements. 37
SECTION 3.14. Compliance with Laws. 37
SECTION 3.15. Environmental and Safety Matters. 37
SECTION 3.16. Use of Proceeds. 38
ARTICLE IV Conditions of Lending 38
SECTION 4.01. Conditions to be Satisfied on Date of Each Borrowing. 38
SECTION 4.02. Conditions to be Satisfied on the Effective Date. 39
ARTICLE V Affirmative Covenants 39
SECTION 5.01. Corporate Existence; Businesses and Properties. 39
SECTION 5.02. Insurance. 40
SECTION 5.03. Obligations and Taxes. 40
SECTION 5.04. Financial Statements, Reports, etc. 40
SECTION 5.05. Litigation and Other Notices. 42
SECTION 5.06. ERISA. 42
SECTION 5.07. Access to Premises and Records. 43
SECTION 5.08. Subsidiary Guarantors. 43
SECTION 5.09. Use of Proceeds. 43
ARTICLE VI Negative Covenants 43
SECTION 6.01. Liens, etc. 44
SECTION 6.02. Indebtedness of Subsidiaries. 45
SECTION 6.03. Compliance with Regulations G, U and X. 45
SECTION 6.04. Mergers, Consolidations and Sales of Assets. 45
SECTION 6.05. Consolidated Leverage Ratio. 46
SECTION 6.06. Consolidated Fixed Charge Coverage Ratio. 46
SECTION 6.07. Consolidated Net Worth. 46
ARTICLE VII Events of Default 46
ARTICLE VIII The Administrative Agent 49
ARTICLE IX Miscellaneous 51
SECTION 9.01. Notices. 51
SECTION 9.02. No Waivers; Amendments. 52
SECTION 9.03. Right of Setoff. 53
SECTION 9.04. Successors and Assigns. 53
SECTION 9.05. Expenses; Indemnity. 56
SECTION 9.06. Survival of Agreements, Representations and Warranties, etc. 57
SECTION 9.07. Governing Law. 57
SECTION 9.08. Sharing of Setoffs. 57
SECTION 9.09. Interest Rate Limitation. 58
SECTION 9.10. Entire Agreement. 58
SECTION 9.11. Waiver of Jury Trial. 58
SECTION 9.12. Severability. 58
SECTION 9.13. Counterparts. 59
SECTION 9.14. Headings. 59
SECTION 9.15. Jurisdiction; Consent to Service of Process. 59
SECTION 9.16. Binding Effect. 60
Exhibits
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Competitive Bid Invitation
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Committed Borrowing Request
Exhibit B-1 Form of Competitive Note
Exhibit B-2 Form of Revolving Note
Exhibit B-3 Form of Term Note
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Administrative Questionnaire
Schedules
Schedule 2.01 Banks and Commitments
Schedule 3.06 Subsidiaries
Schedule 3.07 Litigation
Schedule 3.15 Environmental and Safety Matters
Schedule 6.01 Liens
Schedule 6.02 Indebtedness
COMPETITIVE ADVANCE, REVOLVING CREDIT FACILITY AND TERM LOAN AGREEMENT
dated as of August 26, 1997, among ETHYL CORPORATION, a Virginia corporation
(hereinafter called the Company), the banks listed in Schedule 2.01 (the
"Banks"), NATIONSBANK, N.A., a national banking association, as administrative
agent for the Banks under this Agreement (in such capacity, the "Administrative
Agent").
The Company has requested the Banks to extend credit to the Company in
order to enable it to borrow on a committed revolving credit basis on and after
the Effective Date and at any time and from time to time prior to the Maturity
Date (as hereinafter defined), a principal amount not in excess of $900,000,000
at any time outstanding. The Company has also requested the Banks to provide a
procedure pursuant to which the Company may invite the Banks to bid on an
uncommitted basis on short-term borrowings by the Company. The proceeds of
borrowings hereunder are to be used for general corporate purposes, including to
refinance existing debt and to finance acquisitions and common stock
repurchases. The Banks are severally, and not jointly, willing to extend such
credit to the Company on the terms and conditions hereinafter set forth.
Accordingly, the Company, the Administrative Agent and the Banks agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.
As used in this Agreement, the following words and terms shall have the
meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Committed Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit D.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective. " Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Facility Fee Percentage" shall mean on any date the
applicable percentage set forth below opposite the applicable Ratings or, under
the circumstances specified below, opposite the Consolidated Leverage Ratio:
S&P/Xxxxx'x Rating;
Consolidated Leverage Ratio Facility Fee
--------------------------- ------------
Category 1
BBB+/Baa1 or higher;
less than or equal to 1.0:1.0 .085%
Category 2
BBB/Baa2;
greater than 1.0:1.0 but less
than or equal to 1.75:1.0 .100%
Category 3
BBB-/Baa3;
greater than 1.75:1.0 but less
than or equal to 2.50:1.0 .125%
Category 4
BB+/Ba1,
greater than 2.50:1.0 but less
than or equal to 3.25:1.0 .175%
Category 5
lower than BB+/Ba1;
greater than 3.25:1.0 .250%
For purposes of the foregoing, (i) if two Ratings shall be available and the
Ratings shall fall within different Categories specified above, the Applicable
Facility Fee Percentage shall be determined by reference to the Category in
which the higher of the two Ratings falls; (ii) if only one Rating shall be
available, then the Applicable Facility Fee Percentage shall be determined by
reference to the Category in which such Rating falls; and (iii) if no Ratings
shall be available, then the Applicable Facility Fee Percentage shall be
determined by reference to the Consolidated Leverage Ratio. If any Rating shall
be changed (other than as a result of a change in such rating agency's rating
system) such change shall be effective as of the date on which it is first
announced by the applicable rating agency. For purposes hereof, the Applicable
Facility Fee Percentage shall initially be set at Category 4 (until the Ratings
are adjusted to take into account the purchase of shares contemplated
hereunder). For purposes of the foregoing, the Consolidated Leverage Ratio shall
be determined as of the end of each fiscal quarter of the Company based on the
financial statements of the Company delivered for such fiscal quarter pursuant
to Section 5.04 and the ratio so determined shall be effective from and
including the Determination Date immediately following such fiscal quarter end
to but excluding the next following Determination Date (but after giving effect,
in any event, to the repurchase of shares contemplated hereunder); provided,
however, that the Consolidated Leverage Ratio for any period during which the
Company shall have failed to deliver the financial statements required by
Section 5.04 after having received from the Administrative Agent notice of such
non-delivery shall be deemed for the purposes of this definition to correspond
to Category 5 until such time as the Administrative Agent receives such
financial statements. Each change in the Applicable Facility Fee Percentage
shall apply during the period commencing on the effective date of such change in
the Ratings or the Consolidated Leverage Ratio, as applicable, and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of Xxxxx'x or S&P shall change, the Company and the Banks shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system (and pending or in the absence
of any agreement the Applicable Facility Fee Percentage will be determined by
reference to the other Rating or Ratings, if any).
"Applicable Margin" shall mean on any date, with respect to the Loans
comprising any Eurodollar Loan or ABR Loan, as the case may be, the applicable
spread set forth below opposite the applicable Ratings or, under the
circumstances specified below, opposite the Consolidated Leverage Ratio:
Revolving Loans Term Loan
--------------- ---------
S&P/Xxxxx'x & Xxxxxx Rating; Eurodollar Loan ABR Loan Eurodollar ABR Loan
Consolidated Leverage Ratio Spread Spread Spread Spread
--------------------------- ------ ------ ------ ------
Category 1
BBB+/Baa1 or higher;
less than or equal to 1.0:1.0 .165% .000% .250% .000%
Category 2
BBB/Baa2;
greater than 1.0:1.0 but less
than or equal to 1.75:1.0 .225% .000% .325% .000%
Category 3
BBB-/Baa3;
greater than 1.75:1.0 but less
than or equal to 2.50:1.0 .300% .000% .425% .000%
Category 4
BB+/Ba1,
greater than 2.50:1.0 but less
than or equal to 3.25:1.0 .425% .000% .600% .000%
Category 5
lower than BB+/Ba1;
greater than 3.25:1.0 .500% .000% .750% .000%
For purposes of the foregoing, (i) if two Ratings shall be available and the
Ratings shall fall within different Categories specified above, the Applicable
Margin shall be determined by reference to the Category in which the higher of
the two Ratings falls; (ii) if only one Rating shall be available, then the
Applicable Margin shall be determined by reference to the Category in which such
Rating falls; and (iii) if no Ratings shall be available, then the Applicable
Margin shall be determined by reference to the Consolidated Leverage Ratio. If
any Rating shall be changed (other than as a result of a change in such rating
agency's rating system) such change shall be effective as of the date on which
it is first announced by the applicable rating agency. For purposes hereof, the
Applicable Facility Fee Percentage shall initially be set at Category 4 (until
the Ratings are adjusted to take into account the purchase of shares
contemplated hereunder). For purposes of the foregoing, the Consolidated
Leverage Ratio shall be determined as of the end of each fiscal quarter of the
Company based on the financial statements of the Company delivered for such
fiscal quarter pursuant to Section 5.04 and the ratio so determined shall be
effective from and including the Determination Date immediately following such
fiscal quarter end to but excluding the next following Determination Date (but
after giving effect, in any event, to the repurchase of shares contemplated
hereunder); provided, however, that the Consolidated Leverage Ratio for any
period during which the Company shall have failed to deliver the financial
statements required by Section 5.04 after having received from the
Administrative Agent notice of such non-delivery shall be deemed for the
purposes of this definition to correspond to Category 5 until such time as the
Administrative Agent receives such financial statements. Each change in the
Applicable Margin shall apply during the period commencing on the effective date
of such change in the Ratings or the Consolidated Leverage Ratio, as applicable,
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of Xxxxx'x or S&P shall change, the Company and the
Banks shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system (and pending or in the
absence of any agreement the Applicable Margin will be determined by reference
to the other Rating or Ratings, if any).
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Bank and an assignee, and accepted by the Administrative Agent, in the
form of Exhibit C or such other form as shall be approved by the Administrative
Agent.
"Attributable Debt" shall mean, in connection with a Sale and Lease-Back
Transaction, the present value (discounted in accordance with GAAP at the debt
rate implied in the lease) of the obligations of the lessee for rental payments
during the term of the applicable lease.
"Attributed Principal Amount" shall mean, on any day, with respect to any
Securitization Transaction, the aggregate amount (with respect to any such
transaction, the "Invested Amount") paid to, or borrowed by, such person as of
such date under such Securitization Transaction, minus the aggregate amount
received by the party providing the financing and applied to reduction of the
Invested Amount under such Securitization Transaction.
"Banks" shall mean the banks and financial institutions party to this
Agreement, being the Revolving Lenders and the Term Lenders.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States, or any successor thereto.
"Borrowing" shall mean a group of Loans of a single Type made by the Banks
(or, in the case of a Competitive Borrowing, by the Bank or Banks whose
Competitive Bids have been accepted pursuant to Section 2.03) on a single date
and as to which a single Interest Period is in effect.
"Business Day" shall mean any day not a Saturday, Sunday or legal holiday in
the State of New York on which banks are open for business in New York City;
provided, however, that, when used in connection with a Eurodollar Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London Interbank Market.
"Capitalized Lease Obligations" shall mean the obligations to pay rent or
other amounts under any lease of (or other arrangement conveying the right to
use) real and/or personal property which obligations are required to be
classified and accounted for as a capital lease on a balance sheet under GAAP,
and, for the purposes hereof, the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) other than Xxxxx X. Xxxxxxxx, Xxxxx
X. Xxxxxxxx, Xx. or members of their respective families, or investment entities
owned by any of them, shall own directly or indirectly, beneficially or of
record, shares representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Company or any
corporation directly or indirectly Controlling the Company; or (b) a majority of
the seats (other than vacant seats) on the board of directors of the Company or
any corporation directly or indirectly Controlling the Company shall at any time
be occupied by persons who were neither (i) nominated by the management of the
Company or by persons who were members of the board of directors as of the
Closing Date or members elected by two thirds of such members, nor (ii)
appointed by directors so nominated; provided, however, that an event described
in clause (a) above shall not constitute a "Change in Control" if the
acquisition of shares resulting in ownership of in excess of the 20% threshold
referred to in such clause (a) shall have been approved, prior to the
acquisition of such shares or the commencement by the person or group referred
to in such clause (a) of a tender offer for shares of the Company that would
result, if successful, in such person or group owning in excess of such 20%
threshold, by a majority of the members of the board of directors of the Company
who were either members of the board of directors as of the date of this
Agreement or nominated or appointed as provided in clauses (b)(i) or (ii) above.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean the Revolving Commitment and the Term Loan
Commitment.
"Committed Borrowing" shall mean a borrowing consisting of simultaneous
Revolving Loans from each of the Revolving Lenders.
"Committed Borrowing Request" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"Competitive Bid" shall mean an offer by a Bank to make a Competitive Loan
pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by the
Company pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a Bank
pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive Loan,
the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section 2.03
in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Bank or Banks whose Competitive
Bids for such Borrowing have been accepted by the Company under the bidding
procedure described in Section 2.03.
"Competitive Loan" shall mean a Revolving Loan from a Bank to the
Company pursuant to the bidding procedure described in Section 2.03. Each
Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Competitive Note" shall mean a promissory note of the Company in the form
of Exhibit B-1 executed and delivered as provided in Section 2.07.
"Consolidated" shall mean, as applied to any financial or accounting term,
such term determined on a consolidated basis for the Company and the
Subsidiaries in accordance with generally accepted accounting principles,
including principles of consolidation, consistent with those applied in the
preparation of the Consolidated financial statements referred to in Section
3.04.
"Consolidated EBITDA" means for any period for the Consolidated Group, the
sum of Consolidated Net Income plus Consolidated Interest Expense plus all
provisions for any Federal, state or other domestic and foreign income taxes
plus depreciation and amortization, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis, but excluding
for purposes hereof extraordinary gains and losses and related tax effects
thereon. Except as otherwise expressly provided, the applicable period shall be
for the four consecutive fiscal quarters ending as of the date of determination.
"Consolidated Fixed Charge Coverage Ratio" means for any period for the
Consolidated Group, the ratio of Consolidated EBITDA minus capital expenditures
to Consolidated Fixed Charges.
"Consolidated Fixed Charges" means for any period for the Consolidated
Group, the sum of Consolidated Interest Expense plus scheduled payments of
Consolidated Funded Debt (and, without duplication, mandatory commitment
reductions, sinking fund payments and the like relating thereto in the
applicable period) plus dividends paid by the Company in cash or property (other
than dividends paid solely in shares of that class to the holders of that class)
and amounts paid for the purchase or redemption of shares of stock (excluding
for purposes hereof, the redemption of shares within one year after the Closing
Date up to $435,000,000), in each case on a consolidated basis determined in
accordance with GAAP applied on an consistent basis. Except as otherwise
expressly provided, the applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.
"Consolidated Funded Debt" means Indebtedness of the Consolidated Group
determined on a consolidated basis in accordance with GAAP applied on a
consistent basis.
"Consolidated Group" means the Company and its consolidated subsidiaries, as
determined in accordance with GAAP.
"Consolidated Interest Expense" means for any period for the Consolidated
Group, all interest expense, including the amortization of debt discount and
premium, and the interest component under capital leases, in each case on a
consolidated basis determined in accordance with GAAP applied on a consolidated
basis. Except as expressly provided otherwise, the applicable period shall be
for the four consecutive quarters ending as of the date of determination.
"Consolidated Leverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of Consolidated Funded Debt on such day to Consolidated
EBITDA for the period of four consecutive fiscal quarters ending as of such day.
"Consolidated Net Income" means for any period for the Consolidated Group,
net income on a consolidated basis determined in accordance with GAAP applied on
a consistent basis, but excluding for purposes of determining the Consolidated
Leverage Ratio and Consolidated Fixed Charge Coverage Ratio, any extraordinary
gains or losses and related tax effects thereon. Except as expressly provided
otherwise, the applicable period shall be for the four consecutive quarters
ending as of the date of determination.
"Consolidated Net Worth" means, as for any date for the Consolidated Group,
shareholders' equity or net worth as determined in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise, and
"Controlling" and "Controlled" shall have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse of time
or both would constitute an Event of Default.
"Designated Subsidiary" shall mean any Subsidiary that (a) has assets with a
total market value not in excess of $10,000 and (b) has not conducted any
business or other operations during the prior 12-month period.
"Determination Date" shall mean the 60th day following the end of each of
the first three fiscal quarters in each fiscal year of the Company and the 120th
day following the end of each fiscal year of the Company.
"Dollars", "dollars" or "$" shall mean dollars of lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary organized and existing under
the laws of the United States, or any state thereof or the District of Columbia.
"Effective Date" shall mean the date on which the conditions set forth in
Section 4.02 shall have been satisfied and the initial Borrowings shall have
been made under this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar Loans.
"Eurodollar Committed Loan" shall mean any Revolving Loan or Term Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or Eurodollar
Committed Loan.
"Event of Default" shall have the meaning given to such term in Article VII.
"Executive Officer" shall mean an executive officer as defined in Rule 13b-7
of the rules and regulations adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Fees" shall mean the Facility Fees and the Administrative Fees.
"Financial Officer" shall mean the Chief Financial Officer, the Vice
Chairman of the Board or the Treasurer of the Company.
"Financial Statements" shall mean (a) the Consolidated balance sheets of the
Company and its subsidiaries as at December 31, 1996, and the related statements
of income and changes in financial position for the fiscal year then ended,
reported on by Coopers & Xxxxxxx, independent public accountants and (b) the
unaudited Consolidated balance sheets of the Company and its subsidiaries as of
June 30, 1997, and the related statements of income and changes in financial
position for the six-month period then ended, duly certified by a Financial
Officer of the Company.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Bank making such Loan in its
Competitive Bid.
"Foreign Subsidiary" shall mean any Subsidiary organized under the laws of
any country or any political subdivision of any country, except for Subsidiaries
organized under the laws of the United States of America or Canada or any
political subdivision of the United States of America or Canada.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local, or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Guarantors" shall mean each of the persons identified as a Guarantor on the
signature page to the Subsidiary Guaranty and each other person which may
hereafter become a Guarantor by execution of a Joinder Agreement.
"Indebtedness" with respect to any person shall mean at any time, 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 upon which interest
charges are customarily paid, (iv) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person, (v) all obligations of such person issued or assumed
as the deferred purchase price of property or services (other than accounts
payable to suppliers incurred in the ordinary course of business and not
overdue), (vi) all obligations of others secured by any Lien on property owned
or acquired by such person, whether or not the obligations secured thereby have
been assumed, (vii) all Capitalized Lease Obligations of such person, (viii) the
outstanding Attributed Principal Amount under all Securitization Transactions,
(ix) the principal balance outstanding under all synthetic leases, tax retention
operating leases, off-balance sheet loan or other similar off-balance sheet
financing product to which such person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP and (x) the Guarantees of such person.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan for which
the Interest Period is 1, 2 or 3 months, the last day of the Interest Period,
(ii) as to any Eurodollar Loan for which the Interest Period is 6 months, the
last day of the Interest Period and the date that would be the last day of an
Interest Period commencing on the same date but having a duration of 3 months,
(iii) as to any ABR Loan, the last day of March, June, September and December in
each year, or if such day is not a Business Day, the next succeeding Business
Day and (iv) as to any Fixed Rate Loan, the last day of the Interest Period
applicable thereto.
"Interest Period" shall mean: (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the Company may elect,
and thereafter, each period commencing on the last day of the next preceding
Interest Period for such Eurodollar Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the Company may elect,
(b) as to any ABR Borrowing, the period commencing on the date of such Borrowing
and ending on the Maturity Date or the date of prepayment of such Borrowing and
(c) as to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in which the
offer to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or
later than 360 days after the date of such Borrowing; provided, however, that if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
with respect to Eurodollar Loans only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.
"Joinder Agreement" shall mean a guaranty joinder agreement in substantially
the form attached as Exhibit D hereto.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to the rate of interest determined by the
Administrative Agent on the basis of offered rates for deposits in dollars for a
period of time corresponding to such Interest Period (and commencing on the
first day of such Interest Period), appearing on Telerate Page 3750 (or, if, for
any reason, Telerate Page 3750 is not available, the Reuters Screen LIBO Page)
as of approximately 11:00 A.M. (London time) two
(2) Business Days before the first day of such Interest Period. As used herein,
"Telerate Page 3750" means the display designated as page 3750 by Dow Xxxxx
Markets, Inc. (or such other page as may replace such page on that service for
the purpose of displaying the British Bankers Association London interbank
offered rates) and "Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind whatsoever (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction).
"Loan" shall mean a Revolving Loan, a Competitive Loan or a Term Loan,
whether made as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall mean "margin stock" as defined in Regulation U of the
Board.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, condition (financial or otherwise) or results of operations of
the Company and the Subsidiaries taken as a whole.
"Maturity Date" shall mean the fifth (5th) anniversary date of the Effective
Date, or any anniversary of such date to which the Maturity Date shall have been
extended pursuant to Section 2.10(d).
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Note" or "Notes" shall mean a Revolving Note, a Competitive Note or a Term
Note of the Company executed and delivered under this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"person" shall mean any natural person, corporation, division of a
corporation, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code that is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"Pro Form Basis" shall mean, with respect to any transaction of merger or
consolidation, that such transaction shall be deemed to have occurred as of the
first day of the period of four fiscal quarters ending as of the most recent
fiscal quarter end preceding the date of such transaction with respect to which
the Administrative Agent and the Banks shall have received financial statements
and an officer's certificate in accordance with the provisions of Section 5.04.
"Ratings" shall mean the ratings applicable to the senior, unsecured,
non-credit-enhanced, long-term debt of the Company established by S&P and
Moody's.
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Banks" shall mean a Bank or Banks having Commitments representing
at least 51% of the Total Commitment or, for purposes of acceleration pursuant
to clause (ii) of Article VII, Banks holding Loans representing at least 51% of
the aggregate principal amount of the Loans outstanding.
"Revolving Commitment" shall mean, with respect to each Revolving Lender,
the commitment of such Revolving Lender to make Revolving Loans in an aggregate
principal amount up to the amount shown on Schedule 2.1 hereto as its Revolving
Commitment, as such amount may be reduced from time to time in accordance with
the provisions hereof. The Revolving Commitment shall be deemed permanently
terminated on the Maturity Date.
"Revolving Lenders" shall mean the Banks holding Revolving Commitments, as
identified on Schedule 2.1 hereto, and their successors and assigns.
"Revolving Loans" shall mean the revolving loans made by the Banks to
the Company pursuant to Section 2.01(a). Each Revolving Loan shall be a
Eurodollar Committed Loan or an ABR Loan.
"Revolving Note" shall mean a promissory note of the Company in the form of
Exhibit B-2 executed and delivered as provided in Section 2.7.
"S&P" shall mean Standard & Poor's Ratings Services, a Division of The
McGraw Hill Corporation, Inc., or any successor.
"Sale and Lease-Back Transaction" shall mean, with respect to the Company or
any Subsidiary, any arrangement, directly or indirectly, with any person whereby
the Company or such Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
"Securitization Transaction" shall mean any financing transaction or series
of financing transactions that have been or may be entered into by a member of
the Consolidated Group pursuant to which such member of the Consolidated Group
may sell, convey or otherwise transfer to (i) a Subsidiary or affiliate, or (ii)
any other Person, or may grant a security interest in, any accounts, chattel
paper, instruments or general intangibles, or interests therein secured by the
merchandise or services financed thereby (whether such accounts, chattel paper,
instruments or general intangibles are then existing or arising in the future)
of such member of the Consolidated Group, and any assets related thereto,
including without limitation, all security interests in merchandise or services
financed thereby, the proceeds thereof, and other assets which are customarily
sold or in respect of which security interests are customarily granted in
connection with securitization transactions involving such assets.
"Subsidiary" or "subsidiary" shall mean a subsidiary of the Company.
"Subsidiary Guaranty" shall mean the Guaranty Agreement dated as of the
Closing Date given to the Administrative Agent for the benefit of the Banks in
support of the Loans and obligations hereunder by the Subsidiaries of the
Company identified therein, as amended and modified.
"Term Borrowing" shall mean a borrowing consisting of simultaneous Term
Loans from each of the Term Lenders.
"Term Lenders" shall mean Banks holding Term Loan Commitments, as identified
on Schedule 2.1 hereto, and their successors and assigns.
"Term Loan" shall mean the term loan made by the Banks to the Company
pursuant to Section 2.01(b). Each Revolving Loan shall be a Eurodollar Committed
Loan or an ABR Loan.
"Term Loan Commitment" shall mean, with respect to each Term Lender, the
commitment of such Term Lender to make its portion of the Term Loan in the
principal amount shown on Schedule 2.1 hereto as its Term Loan Commitment (and
for purposes of making determinations of Required Banks hereunder after the
Effective Date, the principal amount outstanding on the Term Loan).
"Total Revolving Commitment" shall mean at any time the aggregate amount of
the Revolving Lenders' Revolving Commitments, as in effect at such time.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Alternate Base Rate and the Fixed Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally.
The definitions in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Company notifies the Administrative Agent that the Company
wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Banks wish to amend Article VI or any
related definition for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Banks.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
(a) Revolving Loans. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Revolving Lender,
severally and not jointly, agrees to make Revolving Loans to the Company, at any
time or from time to time on or after the Effective Date and until the Maturity
Date or until the Revolving Commitment of such Revolving Lender shall have been
terminated in accordance with the terms hereof, in an aggregate principal amount
at any time outstanding not exceeding the amount of such Revolving Lender's
Revolving Commitment minus the amount by which the Competitive Loans outstanding
at such time shall be deemed to have used such Commitment pursuant to Section
2.15, subject, however, to the conditions that (a) at no time shall (i) the sum
of (x) the outstanding aggregate principal amount of all Revolving Loans made by
all Revolving Lenders plus (y) the outstanding aggregate principal amount of all
Competitive Loans made by all Revolving Lenders exceed (ii) the Total Revolving
Commitment and (b) at all times the outstanding aggregate principal amount of
all Revolving Loans made by each Revolving Lender shall equal the product of (i)
the percentage which its Revolving Commitment represents of the Total Revolving
Commitment times (ii) the outstanding aggregate principal amount of all
Revolving Loans made pursuant to Section 2.04. Each Revolving Lender's Revolving
Commitment is set forth opposite its respective name in Schedule 2.01. Such
Revolving Commitments may be terminated or reduced from time to time pursuant to
Section 2.10. Within the foregoing limits, the Company may borrow, repay and
reborrow hereunder on or after the Effective Date and prior to the Maturity
Date, subject to the terms, provisions and limitations set forth herein. Upon
the reasonable request of any Revolving Lender, the Administrative Agent shall
notify such Revolving Lender of the aggregate principal amount of Competitive
Loans and Revolving Loans outstanding at such time. Nothing contained in this
Section 2.01 shall preclude the Company from borrowing on a committed or a
competitive basis outside of this Agreement so long as any such borrowing is not
otherwise prohibited hereunder.
(b) Term Loan. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Term Lender severally and
not jointly, agrees to make its portion of a term loan in the aggregate
principal amount of THREE HUNDRED MILLION DOLLARS ($300,000,000) to the Company
upon request on a Business Day from the Effective Date through September 30,
1997. Each Term Lender's Term Loan Commitment is set forth opposite its
respective name in Schedule 2.01. Amounts repaid on the Term Loan may not be
reborrowed.
SECTION 2.02. Loans.
(a)(i) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Revolving Lenders ratably in accordance with
their Revolving Commitments; provided, however, that the failure of any
Revolving Lender to make any Revolving Loan shall not in itself relieve any
other Revolving Lender of its obligation to lend hereunder (it being understood,
however, that no Revolving Lender shall be responsible for the failure of any
Revolving Lender to make any Revolving Loan required to be made by such other
Revolving Lender). Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.03. The Revolving Loans comprising any
Borrowing shall be in a minimum aggregate principal amount of $5,000,000 and in
integral multiples thereof, in the case of Competitive Loans, or $10,000,000 and
in integral multiples of $1,000,000, in the case of Revolving Loans (or, in
either case, an aggregate principal amount equal to the remaining balance of the
available Revolving Commitments).
(ii) The Term Loan shall be made as part of a Borrowing on request as
provided in Section 2.01(b) consisting of the Term Loan made by the Term Lenders
ratably in accordance with their Term Commitments; provided that the failure of
any Term Lender to make its Term Loan shall not in itself relieve any other Term
Lender of its obligation to lend hereunder (it being understood, however, that
no Term Lender shall be responsible for the failure of any other Term Lender to
make its portion of the Term Loan required to be made by such other Term
Lender).
(b) Each Competitive Borrowing shall be comprised entirely of Eurodollar
Competitive Loans or Fixed Rate Loans, and each Committed Borrowing and each
Term Borrowing shall be comprised entirely of Eurodollar Committed Loans or ABR
Loans, as the Company may request pursuant to Section 2.03 or 2.04, as
applicable. Each Bank may at its option fulfill its Commitment with respect to
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Bank to make such Loan; provided that (i) any exercise of such option shall
not affect the obligation of the Company to repay such Loan in accordance with
the terms of this Agreement and the applicable Note and (ii) the Company shall
not be liable for increased costs under Section 2.12, 2.13 or 2.17 to the extent
that (A) such costs could be avoided by the use of a different branch or
Affiliate to make Eurodollar Loans and (B) such use would not, in the judgment
of such Bank, entail any expense for which such Bank shall not be indemnified
hereunder or otherwise be disadvantageous to it. Borrowings of more than one
Type may be outstanding at the same time; provided, however, that the Company
shall not be entitled to request any Borrowing which, if made, would result in
an aggregate of more than five separate Eurodollar Committed Loans of any Bank
being outstanding hereunder at any one time. For purposes of the foregoing,
Loans having different Interest Periods, regardless of whether they commence on
the same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Bank shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds to the Administrative Agent, not later than 12:00 noon, Charlotte, North
Carolina time, and the Administrative Agent shall by 3:00 p.m., Charlotte, North
Carolina time, credit the amounts so received to the general deposit account of
the Company with the Administrative Agent or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Banks. Competitive Loans
shall be made by the Revolving Lenders whose Competitive Bids therefor are
accepted pursuant to Section 2.03 in the amounts so accepted and Committed Loans
shall be made by the Revolving Lenders pro rata in accordance with Section 2.15.
Unless the Administrative Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's portion of such Borrowing, the Administrative
Agent may assume that such Bank has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with this
paragraph (c) and the Administrative Agent may, in reliance upon such
assumption, make available to the Company on such date a corresponding amount.
If and to the extent that such Bank shall not have made such portion available
to the Administrative Agent, such Bank and the Company severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Company, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds Effective Rate. If such Bank shall repay to
the Administrative Agent such corresponding amount, such amount shall constitute
such Bank's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Company shall
not be entitled to request (i) any Committed Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date with respect to
any Bank or (ii) any Term Borrowing if the Interest Period requested with
respect thereto would extend beyond any principal amortization payment date
unless the portion of the Term Loan comprised of ABR Loans together with the
portion of the Term Loan comprised of Eurodollar Loans with Interest Periods
expiring prior to the date of the principal amortization payment is due, is at
least equal to the amount of such principal amortization payment due on such
date.
SECTION 2.03. Competitive Bid Procedure.
(a) The Company may request the Revolving Lenders to make Competitive Bids
in respect of an aggregate amount of Competitive Borrowings at any time
outstanding not in excess of (i) the Total Revolving Commitment in effect at
such time less (ii) the aggregate Committed Borrowings outstanding at such time.
In order to request Competitive Bids, the Company shall hand deliver or telecopy
to the Administrative Agent a duly completed Competitive Bid Request in the form
of Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the
case of a Eurodollar Competitive Borrowing, not later than 10:00 a.m.,
Charlotte, North Carolina time, four Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., Charlotte, North Carolina time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the Administrative
Agent's sole discretion, and the Administrative Agent shall promptly notify the
Company of such rejection by telecopier. Such request shall in each case refer
to this Agreement and specify (x) whether the Borrowing then being requested is
to be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the date of such
Borrowing (which shall be a Business Day) and the aggregate principal amount
thereof which shall be in a minimum principal amount of $5,000,000 and in
integral multiples thereof, and (z) the Interest Period with respect thereto
(which may not end after the Maturity Date (as such date may have been extended
pursuant to Section 2.10)). Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, the Administrative Agent shall invite
by telecopier (in the form set forth in Exhibit A-2 hereto) the Revolving
Lenders to bid, on the terms and conditions of this Agreement, to make
Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Revolving Lender may, in its sole discretion, make one or more
Competitive Bids to the Company responsive to any Competitive Bid Request;
provided, however, that no Revolving Lender may make a Competitive Bid in
response to any Competitive Bid Request for which the Interest Period requested
would end after the Maturity Date with respect to such Revolving Lender. Each
Competitive Bid by a Revolving Lender must be received by the Administrative
Agent via telecopier, in the form of Exhibit A-3 hereto, (i) in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., Charlotte, North
Carolina time, three Business Days before a proposed Competitive Borrowing and
(ii) in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., Charlotte,
North Carolina time, on the day of a proposed Competitive Borrowing. Multiple
bids will be accepted by the Administrative Agent. Competitive Bids that do not
conform substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
Company, and the Administrative Agent shall notify the Revolving Lender making
such nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in
integral multiples thereof and which may equal the entire principal amount of
the Competitive Borrowing requested by the Company) of the Competitive Loan or
Loans that the Revolving Lender is willing to make to the Company, (y) the
Competitive Bid Rate or Rates at which the Revolving Lender is prepared to make
the Competitive Loan or Loans and (z) the Interest Period and the last day
thereof. If any Revolving Lender shall elect not to make a Competitive Bid, such
Revolving Lender shall so notify the Administrative Agent via telecopier (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., Charlotte,
North Carolina time, three Business Days before a proposed Competitive
Borrowing, and (II) in the case of Fixed Rate Loans, not later than 9:30 a.m.,
Charlotte, North Carolina time, on the day of a proposed Competitive Borrowing;
provided, however, that failure by any Revolving Lender to give such notice
shall not cause such Revolving Lender to be obligated to make any Competitive
Loan as part of such Competitive Borrowing. A Competitive Bid submitted by a
Revolving Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the Company by telecopier
of all the Competitive Bids made, the Competitive Bid Rate, the Interest Period
and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Revolving Lender that made each
bid. The Administrative Agent shall send a copy of all Competitive Bids to the
Company for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.03.
(d) The Company may in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Competitive Bid referred
to in paragraph (c) above. The Company shall notify the Administrative Agent by
telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c) above, (x) in the
case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m.,
Charlotte, North Carolina time, three Business Days before a proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., Charlotte, North Carolina time, on the day of a proposed
Competitive Borrowing; provided, however, that (i) the failure by the Company to
give such notice shall be deemed to be a rejection of all the bids referred to
in paragraph (c) above, (ii) the Company shall not accept a bid made at a
particular Competitive Bid Rate if the Company has decided to reject a bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Company shall not exceed the principal amount specified in
the Competitive Bid Request, (iv) if the Company shall accept a bid or bids made
at a particular Competitive Bid Rate but the amount of such bid or bids shall
cause the total amount of bids to be accepted by the Company to exceed the
amount specified in the Competitive Bid Request, then the Company shall accept a
portion of such bid or bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request, which acceptance, in the case of
multiple bids at such Competitive Bid Rate, shall be made pro rata in accordance
with the amount of each such bid at such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of $5,000,000 and
an integral multiple thereof; provided further, however, that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $500,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$500,000 in a manner which shall be in the discretion of the Company. A notice
given by the Company pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Revolving
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Revolving Lender, it shall submit such bid directly to the
Company one half of an hour earlier than the latest time at which the other
Banks are required to submit their bids to the Administrative Agent pursuant to
paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in accordance
with Section 9.01.
SECTION 2.04. Committed Borrowing Procedure.
In order to request a Committed Borrowing, the Company shall hand deliver or
telecopy (or notify by telephone and promptly confirm by hand delivery or
telecopy) to the Administrative Agent the information requested by the form of
Committed Borrowing Request attached as Exhibit A-5 hereto (a) in the case of a
Eurodollar Committed Borrowing, not later than 10:30 a.m., Charlotte, North
Carolina time, three Business Days before a proposed Borrowing and (b) in the
case of an ABR Borrowing, not later than 10:30 a.m., Charlotte, North Carolina
time, on the day of a proposed Borrowing. No Fixed Rate Loan shall be requested
or made pursuant to a Committed Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (i) whether the Borrowing then being
requested is to be a Eurodollar Committed Borrowing or an ABR Borrowing; (ii)
the date of such Committed Borrowing (which shall be a Business Day) and the
amount thereof; and (iii) if such Borrowing is to be a Eurodollar Committed
Borrowing, the Interest Period with respect thereto. If no election as to the
Type of Committed Borrowing is specified in any such notice, then the requested
Committed Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Committed Borrowing is specified in any such notice,
then the Company shall be deemed to have selected an Interest Period of one
month's duration. If the Company shall not have given notice in accordance with
this Section 2.04 of its election to refinance a Committed Borrowing prior to
the end of the Interest Period in effect for such Borrowing, then the Company
shall (unless such Borrowing is repaid at the end of such Interest Period) be
deemed to have given notice of an election to refinance such Borrowing with an
ABR Borrowing. The Administrative Agent shall promptly advise the Banks of any
notice given pursuant to this Section 2.04 and of each Bank's portion of the
requested Borrowing.
SECTION 2.05. Refinancings.
The Company may refinance all or any part of any Borrowing with a Borrowing
of the same or a different Type made pursuant to Section 2.03 or Section 2.04,
subject to the conditions and limitations set forth herein and elsewhere in this
Agreement, including refinancings of Competitive Borrowings with Committed
Borrowings and Committed Borrowings with Competitive Borrowings. Any Borrowing
or part thereof so refinanced shall be deemed to be repaid in accordance with
Section 2.07 with the proceeds of a new Borrowing hereunder and the proceeds of
the new Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Banks to the Administrative
Agent or by the Administrative Agent to the Company pursuant to Section 2.02(c);
provided, however, that (i) if the principal amount extended by a Bank in a
refinancing is greater than the principal amount extended by such Bank in the
Borrowing being refinanced, then such Bank shall pay such difference to the
Administrative Agent for distribution to the Banks described in (ii) below, (ii)
if the principal amount extended by a Bank in the Borrowing being refinanced is
greater than the principal amount being extended by such Bank in the
refinancing, the Administrative Agent shall return the difference to such Bank
out of amounts received pursuant to (i) above, and (iii) to the extent any Bank
fails to pay the Administrative Agent amounts due from it pursuant to (i) above,
any Loan or portion thereof being refinanced with such amounts shall not be
deemed repaid in accordance with Section 2.07 and shall be payable by the
Company.
SECTION 2.06. Fees.
(a) The Company agrees to pay to each Revolving Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31
and on the date on which the Revolving Commitment of such Revolving Lender shall
be reduced or terminated as provided herein, a commitment fee (a " Facility
Fee") at a rate per annum equal to the Applicable Facility Fee Percentage from
time to time in effect on the average daily amount of the Revolving Commitment
of such Bank during the preceding quarter (or shorter period commencing with the
Closing Date or ending with the Maturity Date or any date on which the
Commitment of such Bank shall be terminated). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Facility Fee due to each Revolving Lender shall commence to accrue on
the Closing Date, and shall cease to accrue on the earlier of the Maturity Date
and the termination of the Commitment of such Revolving Lender as provided
herein.
(b) The Company agrees to pay the Administrative Agent, for its own account,
(i) administrative fees at the times and in the amounts agreed upon in the
letter agreement dated August 22, 1997, between the Company and the
Administrative Agent and (ii) such Competitive Bid auction fees as shall be
agreed upon by the Company and the Administrative Agent from time to time
(collectively, the "Administrative Fees").
(c) All Fees shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, if and as appropriate, among the
appropriate Banks. Once paid, none of the Fees paid by the Company shall be
refundable under any circumstances, except in the case of manifest error.
SECTION 2.07. Notes; Repayment of Loans.
The Competitive Loans made by each Revolving Lender shall be evidenced by a
single Competitive Note duly executed on behalf of the Company, dated the
Closing Date, in substantially the form attached hereto as Exhibit B-1 with the
blanks appropriately filled, payable to such Revolving Lender in a principal
amount equal to the Total Revolving Commitment. The Revolving Loans made by each
Revolving Lender shall be evidenced by a single Revolving Note duly executed on
behalf of the Company, dated the Closing Date, in substantially the form
attached hereto as Exhibit B-2 with the blanks appropriately filled, payable to
such Bank in a principal amount equal to the Revolving Commitment of such
Revolving Lender. The Term Loan made by each Term Lender shall be evidenced by a
single Term Note duly executed on behalf of the Company, dated the Closing Date,
in substantially the form attached hereto as Exhibit B-3 with the blanks
appropriately filled, payable to such Term Lender in the principal amount equal
to the Term Commitment of such Term Lender. Each Competitive Note, each
Revolving Note and each Term Note shall bear interest from the date thereof on
the outstanding principal balance thereof as set forth in Section 2.08. Each
Bank shall, and is hereby authorized by the Company to, endorse on the schedule
attached to the relevant Note held by such Bank (or on a continuation of such
schedule attached to each such Note and made a part thereof), or otherwise to
record in such Bank's internal records, an appropriate notation evidencing the
date and amount of each Competitive Loan, Revolving Loan or Term Loan, as
applicable, of such Bank, each payment or prepayment of principal of any
Competitive Loan, Revolving Loan or Term Loan, as applicable, and the other
information provided for on such schedule; provided, however, that the failure
of any Bank to make such a notation or any error therein shall not in any manner
affect the obligation of the Company to repay the Competitive Loans, Revolving
Loan or Term Loans, as applicable, made by such Bank in accordance with the
terms of the relevant Note. The outstanding principal balance of each
Competitive Loan and Committed Loan, as evidenced by the relevant Note, shall be
payable on the last day of the Interest Period applicable to such Loan and on
the Maturity Date. The outstanding principal balance of Term Loan, as evidenced
by the relevant Term Note, shall be due on the last day of the Interest Period
applicable to such Loan (subject to refinancing as provided herein) and in
twenty (20) consecutive quarterly installments as follows:
January 2, 1998 $10,000,000
Six Month Anniversary Date of Effective Date $10,000,000
Nine Month Anniversary Date of Effective Date $10,000,000
One Year Anniversary Date of Effective Date $10,000,000
January 2, 1999 $5,000,000
Eighteen Month Anniversary Date of Effective Date $5,000,000
Twenty-One Month Anniversary Date of Effective Date $5,000,000
Two Year Anniversary Date of Effective Date $5,000,000
January 2, 2000 $15,000,000
Thirty Month Anniversary Date of Effective Date $15,000,000
Thirty-Three Month Anniversary Date of Effective Date $15,000,000
Three Year Anniversary Date of Effective Date $15,000,000
January 2, 2001 $20,000,000
Forty-Two Month Anniversary Date of Effective Date $20,000,000
Forty-Five Month Anniversary Date of Effective Date $20,000,000
Four Year Anniversary Date of Effective Date $20,000,000
January 2, 2002 $25,000,000
Fifty-Four Month Anniversary Date of Effective Date $25,000,000
Fifty-Seven Month Anniversary Date of Effective Date $25,000,000
Five Year Anniversary Date of the Effective Date $25,000,000
-----------
$300,000,000
SECTION 2.08. Interest on Loans.
(a) Subject to the provisions of Section 2.09, the Loans comprising each ABR
Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, when determined
by reference to the Prime Rate and over a year of 360 days at all other times)
at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(b) Subject to the provisions of Section 2.09, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i)
in the case of each Eurodollar Committed Loan, the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin, and (ii) in the
case of each Eurodollar Competitive Loan, the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Margin offered by the Revolving Lender
making such Loan and accepted by the Company pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the fixed rate of interest
offered by the Revolving Lender making such Loan and accepted by the Company
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan. The LIBO Rate or the Alternate Base Rate for each
Interest Period or day within an Interest Period shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.09. Additional Interest; Alternate Rate of Interest.
(a) If the Company shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder, the Company
shall on demand from time to time pay interest on any overdue payment of
principal and other amounts (other than interest) and, to the extent permitted
by law, on overdue payments of interest up to the date of actual payment (after
as well as before judgment):
(i) in the case of principal of or interest on an ABR
Loan or a Eurodollar Loan, at a rate determined by the Administrative
Agent (such determination to be conclusive and binding on the Company)
to be 1% per annum above the rate which would otherwise be payable on
such Loans in accordance with the provisions herein; and
(ii) in the case of any other amount payable
hereunder (other than principal of or interest on any Loan referred to
in clause (i) above), at a rate 1% per annum above the Alternate Base
Rate.
(b) In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Loan, the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that dollar deposits in the principal
amount of such Eurodollar Loan are not generally available in the London
Interbank Market, or that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Banks of making
or maintaining the principal amount of such Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining the LIBO Rate,
the Administrative Agent shall, as soon as practicable thereafter, give written,
telegraphic or telephonic notice of such determination to the Company and the
Banks, and any request by the Company for a Eurodollar Loan or for conversion to
or maintenance of a Eurodollar Loan pursuant to the terms of this Agreement
shall be deemed a request for an ABR Borrowing. After such notice shall have
been given and until the circumstances giving rise to such notice no longer
exist, each request for a Eurodollar Loan shall be deemed to be a request for an
ABR Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.10. Termination, Reduction and Extension of Commitments.
(a) The Revolving Commitments shall be automatically terminated on the
Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or telecopy
notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Revolving Commitment; provided, however, that (i) each partial reduction
of the Total Revolving Commitment shall be in a minimum principal amount of
$10,000,000 and in integral multiples thereof and (ii) no such termination or
reduction shall be made which would reduce the Total Revolving Commitment to an
amount less than the aggregate outstanding principal amount of the Competitive
Loans.
(c) Each reduction in the Total Revolving Commitment hereunder shall be made
ratably among the Revolving Lenders in accordance with their respective
Revolving Commitments. The Company shall pay to the Administrative Agent for the
account of the Revolving Lenders, on the date of each termination or reduction,
the Facility Fees on the amount of the Revolving Commitments so terminated or
reduced accrued to the date of such termination or reduction.
(d) Not later than the date 60 days prior to the first or any subsequent
anniversary of the date hereof, the Company may deliver to the Administrative
Agent (which shall promptly transmit to each Revolving Lender) a notice
requesting that the Revolving Commitments be extended to the first anniversary
of the Maturity Date. Within 30 days after its receipt of any such notice, each
Revolving Lender shall notify the Administrative Agent of its willingness or
unwillingness so to extend its Commitment. Any Revolving Lender that shall fail
so to notify the Administrative Agent within such period shall be deemed to have
declined to extend its Revolving Commitment. If Revolving Lenders holding a
majority in amount of the Revolving Commitments agree to extend their Revolving
Commitments, the Administrative Agent shall so notify the Company and each
Revolving Lender that shall have consented to such request, whereupon (i) the
respective Revolving Commitments of such consenting Revolving Lenders and each
other Revolving Lender that shall consent to the extension of its Revolving
Commitment prior to the expiration of its respective 30-day period shall without
further act be extended to the first anniversary of the Maturity Date at the
time in effect, (ii) the term "Maturity Date" shall thenceforth mean, as to the
Revolving Loans of such consenting Revolving Lenders, such first anniversary and
(iii) the Revolving Commitments of the non-extending Revolving Lenders shall
terminate on the Maturity Date in effect prior to such extension and the
Revolving Loans and other amounts owed to such Revolving Lenders shall become
due and payable on such date. If Revolving Lenders holding a majority in amount
of the Revolving Commitments shall not have agreed to extend their Revolving
Commitments, then none of the Revolving Commitments shall be extended and the
Maturity Date shall remain unchanged. In the event that any Revolving Lender
shall have declined or been deemed to have declined to extend its Revolving
Commitment and the Revolving Commitments of other Revolving Lender shall have
been extended, the Company shall have the right, but not the obligation, at its
own expense, upon notice to such Revolving Lender and the Administrative Agent,
to replace such Revolving Lender at any time prior to the termination of such
Revolving Lender's Revolving Commitment (in accordance with and subject to the
restrictions contained in Section 9.04) with an assignee willing to agree that
its Revolving Commitment will terminate on the extended Maturity Date, and such
Revolving Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement to such assignee;
provided, however, that (i) no such assignment shall conflict with any law or
any rule, regulation or order of any Governmental Authority and (ii) the Company
or such assignee, as the case may be, shall pay to the affected Revolving Lender
in immediately available funds on the date of such assignment the principal of
and interest accrued to the date of payment on the Loans made by such Revolving
Lender hereunder and all other amounts accrued for such Revolving Lender's
account or owed to it hereunder.
SECTION 2.11. Prepayment of Loans.
(a) The Company shall have the right at any time and from time to time to
prepay the Term Loan and any Committed Borrowing, in whole or in part, without
premium or penalty (but in any event subject to Section 2.14), upon prior
written, telecopy or telephonic notice to the Administrative Agent given no
later than 10:30 a.m., Charlotte, North Carolina time, one Business Day before
any proposed prepayment; provided, however, that each such partial prepayment
shall be in a minimum principal amount of $10,000,000 and in integral multiples
of $1,000,000. The Company shall not have the right to prepay any Competitive
Borrowing.
(b) On the date of any termination or reduction of the Revolving Commitments
pursuant to Section 2.10, the Company shall pay or prepay so much of the
Committed Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Revolving Loans outstanding will not exceed
the Total Revolving Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing to be prepaid, shall be irrevocable and shall
commit the Company to prepay such Borrowing (or portion thereof) by the amount
stated therein. All prepayments on Eurodollar Loans under this Section shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date hereof any
change in applicable law or regulations or in the interpretation or
administration thereof (including, without limitation, any request, guideline or
policy not having the force of law) by any Governmental Authority charged with
the administration or interpretation thereof shall occur which shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
(including a tax) against any assets held by, deposits with or for the account
of or credit extended by such Bank (including any reserve requirement that may
be applicable to "eurocurrency liabilities" under and as defined in Regulation
D) or shall impose upon such Bank or the London interbank market any other
condition with respect to this Agreement or the Eurodollar Loans or Fixed Rate
Loans made by such Bank and the result of any of the foregoing shall be to
increase the cost to such Bank of making or maintaining any Eurodollar Loan or
Fixed Rate Loan hereunder or to reduce the amount of any payment (whether of
principal, interest or otherwise) by an amount deemed by such Bank to be
material, then and in each such case the Company shall pay to such Bank, as
provided in paragraph (c) below, such amounts as shall be necessary to
compensate such Bank for such cost, reduction or payment; provided, however,
that the Company may, at its option and upon written notice to the
Administrative Agent and the Banks, either (i) elect to convert such Loan of
such Bank into an ABR Loan upon the payment by the Company of the increased
costs described above incurred prior to such conversion and any amount owing in
respect of Section 2.14 hereof, it being understood that (A) for purposes of
Section 2.11, such ABR Loan shall be subject to prepayment only at such times
and on such conditions as the Loan from which it was converted and (B) upon such
increased costs being eliminated, or reduced by an amount deemed sufficient by
the Company, such ABR Loan will be converted into a Loan of the same Type as the
Loan previously converted into such ABR Loan having an Interest Period expiring
on the same date as the Loan previously converted into such ABR Loan or (ii)
with the prior consent of the Required Banks, elect to convert all (but not less
than all) Loans of all Banks of the same Type and Interest Period as the Loan
subject to such change into Loans of a different Type upon the payment of all
amounts that are due under this Section 2.12(a) and Section 2.14.
Notwithstanding the foregoing, no Bank shall be entitled to request compensation
under this paragraph with respect to any Competitive Loan if it shall have been
aware of the change giving rise to such request at the time of submission of the
Competitive Bid pursuant to which such Competitive Loan shall have been made.
(b) If any Bank shall have determined that the adoption after the date
hereof of any law, rule, regulation, agreement or guideline regarding capital
adequacy, or any change in any law, rule, regulation, agreement or guideline
regarding capital adequacy or in the interpretation or administration of any
law, rule, regulation, agreement or guideline regarding capital adequacy by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
issued under any law, rule, regulation or guideline (whether or not having the
force of law) of any such authority, central bank or comparable agency issued
after the date hereof, has or would have the effect of reducing the rate of
return on such Bank's capital or on the capital of such Bank's holding company,
if any, as a consequence of this Agreement or the Loans made by such Bank
pursuant hereto to a level below that which such Bank or such Bank's holding
company could have achieved but for such applicability, adoption, change or
compliance by an amount deemed by such Bank to be material, then from time to
time the Company shall pay to such Bank following receipt of a certificate of
such Bank to such effect in accordance with paragraph (c) below such additional
amount or amounts as will compensate such Bank or such Bank's holding company on
an after-tax basis for any such reduction suffered.
(c) Each Bank shall promptly deliver to the Company from time to time one or
more certificates setting forth the amounts due to such Bank under paragraphs
(a) and (b) above, the changes as a result of which such amounts are due and the
manner of computing such amounts. Each such certificate shall be conclusive in
the absence of manifest error. The Company shall pay to each Bank the amounts
shown as due on any such certificate within 10 days after its receipt of the
same. No failure on the part of any Bank to demand compensation under paragraph
(a) or (b) above on any one occasion shall constitute a waiver of its right to
demand such compensation with respect to such period or any other period, except
that no Bank shall be entitled to compensation under this Section 2.12 for any
costs incurred or reduction suffered with respect to any date unless such Bank
shall have notified the Company that it will demand compensation for such costs
or reductions not more than 90 days after the later of (i) such date and (ii)
the date on which such Bank shall have become aware of such costs or reductions.
The protection of this Section 2.12 shall be available to each Bank regardless
of any possible contention of the invalidity or inapplicability of any law,
rule, regulation, guideline or other change or condition which shall have
occurred or been imposed and shall give rise to any demand by such Bank for
compensation hereunder.
(d) Promptly after actual notice to any Bank that a change referred to in
paragraph (a) or (b) above has occurred, such Bank will give notice of such
occurrence to the Company and the Administrative Agent and, unless all the
Eurodollar Loans giving rise to any such increased costs shall have been
converted to Loans of another type, such Bank will, for a period of 30 days
after the giving of such notice, use reasonable efforts to specify a new
Eurodollar lending office with respect to its Commitment and the Eurodollar
Loans held by it with a view to mitigating the consequences of such occurrence
to the greatest extent practicable unless in the opinion of such Bank such
specification might at such time or in the future have an adverse effect upon
it.
SECTION 2.13. Change in Legality.
(a) Notwithstanding anything to the contrary contained in Section 2.18 or
elsewhere in this Agreement, if any change after the date hereof in law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for a Bank to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Company and the Administrative Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter
be made by such Bank hereunder, whereupon such Bank shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by the Company for a Eurodollar Committed
Borrowing shall, as to such Bank only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, whereupon all of such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
(b) For purposes of this Section 2.13, a notice to the Company by any Bank
pursuant to paragraph (a) above shall be effective with respect to outstanding
Eurodollar Loans, if lawful, on the last day of the then current Interest
Period; in all other cases, such notice shall be effective on the date of
receipt by the Company.
SECTION 2.14. Indemnity.
The Company shall reimburse each Bank on demand for any loss incurred or to
be incurred by it in the reemployment of the funds released by any prepayment or
conversion of any Eurodollar Loan or Fixed Rate Loan required or permitted by
any other provision of this Agreement if such Loan is prepaid or converted other
than on the last day of any Interest Period for such Loan. Such loss shall be
the difference as reasonably determined by such Bank between the amount that
would have been realized by such Bank for the remainder of such Interest Period
for such Loan based on the interest rate applicable thereto hereunder during
such Interest Period and any lesser amount that would be realized by such Bank
in reemploying the funds received in prepayment by making a Loan of the same
type in the principal amount prepaid during the period from the date of
prepayment to the end of the Interest Period of the Loan being prepaid. Without
duplication of the foregoing indemnity payments, the Company will indemnify each
Bank against any actual loss or expense which such Bank may sustain or incur as
a consequence of (a) any failure by the Company to borrow or to refinance any
Loan hereunder after irrevocable notice of such borrowing or refinancing, (b)
any default in payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by notice of prepayment or otherwise), or (c) the occurrence
of any Event of Default, including but not limited to any loss or expense
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof. Each Bank shall
provide to the Company a statement, signed by an officer of such Bank and
explaining the amount and calculation of any such actual loss or expense, which
statement shall, in the absence of manifest error, be conclusive with respect to
the parties hereto.
SECTION 2.15. Pro Rata Treatment, etc.
Except as required under Section 2.10(d) or 2.13, (i) each Committed
Borrowing, each payment or prepayment of principal of any Committed Borrowing,
each payment of interest on the Revolving Loans, each payment of the Facility
Fees, each reduction of the Revolving Commitments and each refinancing of any
Borrowing with a Committed Borrowing of any Type, shall be made pro rata among
the Revolving Lenders in accordance with their respective Revolving Commitments
(or, if such Revolving Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Revolving
Loans) and (ii) each Term Borrowing, each payment or prepayment of principal on
the Term Loan and each refinancing of a Term Borrowing shall be made pro rata
among the Term Lenders in accordance with their respective Term Loan Commitments
(and, after the making of the Term Loan, in accordance with the principal amount
of their outstanding Term Loan). Each payment of principal of any Competitive
Borrowing shall be allocated pro rata among the Revolving Lenders participating
in such Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Revolving Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Revolving Commitments of the Revolving Lenders at any time (but not
for purposes of Section 2.06(a)), each outstanding Competitive Borrowing shall
be deemed to have utilized the Revolving Commitments of the Banks (including
those Revolving Lenders which shall not have made Revolving Loans as part of
such Competitive Borrowing) pro rata in accordance with such respective
Revolving Commitments. Each Bank agrees that in computing such Bank's portion of
any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Bank's percentage of such Borrowing to the next higher or
lower whole dollar amount.
SECTION 2.16. Payments.
(a) The Company shall make each payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder not later than 12:00
(noon), Charlotte, North Carolina time, on the date when due in dollars to the
Administrative Agent at its offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx
Center, 00xx Xxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency
Services, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.17. Taxes.
(a) Any and all payments by the Company hereunder shall be made, in
accordance with Section 2.16, free and clear of and without deduction for any
and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (i) taxes
imposed on or measured by all or part of the gross or net income (but not
including any such tax in the nature of a withholding tax) of the Administrative
Agent or any Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "Transferee")), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Bank (or
Transferee) is organized or has its applicable lending office or any political
subdivision of any thereof and (ii) taxes that would not have been imposed if
the only connection between the Administrative Agent or any Bank (or
Transferee), or any Affiliate thereof, and the jurisdiction imposing such taxes
were activities of the Administrative Agent or such Bank (or Transferee)
pursuant to or in respect of this Agreement (including entering into, lending
money or extending credit pursuant to, receiving payments under or enforcing
this Agreement) (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, "Taxes").
If the Company shall be required to deduct any Taxes from or in respect of any
sum payable hereunder to any Bank (or any Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount (an "additional
amount") necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.17) such
Bank (or Transferee) or the Administrative Agent (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Company shall make such deductions and (iii) the Company
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Company agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise similarly with respect to, this
Agreement and the Notes ("Other Taxes").
(c) The Company will indemnify each Bank (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes paid by such
Bank (or Transferee) or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by a Bank, or the Administrative Agent on its
behalf, absent manifest error, shall be final, conclusive and binding for all
purposes. Such indemnification shall be made within 30 days after the date the
Bank (or Transferee) or the Administrative Agent, as the case may be, makes
written demand therefor. Each Bank (or Transferee) or the Administrative Agent
shall make written demand for indemnification no later than 120 days after the
earlier of (i) the date on which such Bank (or Transferee) or the Administrative
Agent makes such payment of Taxes or Other Taxes and (ii) the date on which such
Governmental Authority makes written demand upon such Bank (or Transferee) or
the Administrative Agent for payment of such Taxes or Other Taxes.
(d) If a Bank (or Transferee) or the Administrative Agent shall become aware
that it is entitled to claim a refund, credit or reduction in tax from a
Governmental Authority in respect of Taxes or Other Taxes as to which it has
been indemnified by the Company, or with respect to which the Company has paid
additional amounts, pursuant to this Section 2.17, it shall promptly notify the
Company of the availability of such refund claim, credit or reduction in tax and
shall, within 30 days after receipt of a request by the Company, make a claim to
such Governmental Authority for such refund, credit or reduction in tax at the
Company's expense. If a Bank (or Transferee) or the Administrative Agent
receives a refund (including pursuant to a claim for refund made pursuant to the
preceding sentence) or realizes a credit or reduction in tax in respect of any
Taxes or Other Taxes as to which it has been indemnified by the Company or with
respect to which the Company has paid additional amounts pursuant to this
Section 2.17, it shall within 30 days from the date of such receipt pay over the
amount of such refund or benefit of such credit or reduction in tax to the
Company (but only to the extent of indemnity payments made, or additional
amounts paid, by the Company under this Section 2.17 with respect to the Taxes
or Other Taxes giving rise to such refund, credit or reduction in tax), net of
all reasonable out-of-pocket expenses of such Bank (or Transferee) or the
Administrative Agent and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund, credit or reduction
in tax); provided, however, that the Company, upon the request of such Bank (or
Transferee) or the Administrative Agent, agrees to repay the amount paid over to
the Company (plus penalties, interest or other charges) to such Bank (or
Transferee) or the Administrative Agent in the event such Bank (or Transferee)
or the Administrative Agent is required to repay such refund, credit or
reduction in tax to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Company to the relevant Governmental Authority, the Company will
deliver to the Administrative Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.17 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Bank (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Bank") shall deliver to each of the Company and the
Administrative Agent (i) two copies of either United States Internal Revenue
Service Form 1001 or Form 4224 (whichever is applicable, or (ii) in the case of
a Non-U.S. Bank claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
and a certificate representing that such Non-U.S. Bank is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Company and is not a
controlled foreign corporation related to the Company (within the meaning of
Section 864(d)(4) of the Code), in either case properly completed and duly
executed by such Non-U.S. Bank claiming complete exemption from, or reduced rate
of, U.S. Federal withholding tax on payments by the Company under this
Agreement. Such forms shall be delivered by each Non-U.S. Bank on or before the
date it becomes a party to this Agreement (or, in the case of a Transferee that
is a participation holder, on or before the date such participation holder
becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Bank changes its applicable lending office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S. Bank shall deliver
such forms promptly upon (or, if reasonably practicable, prior to) the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Bank.
Notwithstanding any other provision of this Section 2.17(g), a Non-U.S. Bank
shall not be required to deliver any form pursuant to this Section 2.17(g) that
such Non-U.S. Bank is not legally able to deliver. Each Bank (or Transferee)
that is organized under the laws of the United States or any state thereof or
the District of Columbia shall deliver to the Company an original copy of
Internal Revenue Service Form W-9 (or applicable successor form) properly
completed and duly executed by such Bank (or Transferee).
(h) The Company shall not be required to indemnify any Non-U.S. Bank, or to
pay any additional amounts to any Non-U.S. Bank, in respect of United States
Federal withholding tax (or any withholding tax imposed by a state that applies
only when such United States Federal withholding tax is imposed) pursuant to
paragraph (a) or (c) above to the extent that: (i) the obligation to withhold
amounts with respect to United States Federal withholding tax existed on the
date such Non-U.S. Bank became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation holder
became a Transferee hereunder) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Bank designated such New Lending Office with
respect to a Loan; provided, however, that this clause (i) shall not apply to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation made
at the request of the Company; and provided further, however, that this clause
(i) shall not apply to the extent the indemnity payment or additional amounts
any Transferee, or Bank (or Transferee) through a New Lending Office, would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Bank (or Transferee) making the
designation of such New Lending Office, would have been entitled to receive in
the absence of such assignment, participation, transfer or designation; or (ii)
the obligation to make such indemnification or to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Bank to comply with the
provisions of paragraph (g) above.
(i) Any Bank (or Transferee) claiming any indemnity payment or additional
amounts payable pursuant to this Section 2.17 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested in writing by the Company or to change the
jurisdiction of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such indemnity
payment or additional amounts that may thereafter accrue and would not, in the
good faith determination of such Bank (or Transferee), be otherwise
disadvantageous to such Bank (or Transferee).
(j) Nothing contained in this Section 2.17 shall require any Bank (or
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information that it deems to be confidential or proprietary).
SECTION 2.18. Certain Bank Obligations.
In the event (a) any Bank delivers a certificate requesting compensation
pursuant to Section 2.12, (b) any Bank delivers a notice described in Section
2.13 or (c) the Company is required to pay any additional amount to any Bank or
any Governmental Authority on account of any Bank, pursuant to Section 2.17, the
Company may require such Bank to transfer and assign, without recourse, all of
its interests, rights and obligations under this Agreement to an assignee which
shall assume such assigned obligations (which assignee may be another Bank, if
such Bank accepts such assignment); provided, that
(i) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental
Authority having jurisdiction and
(ii) the Company or such assignee shall have paid to
the assigning Bank in immediately available funds an amount equal to
the sum of the principal of and interest accrued to the date of such
payment on the outstanding Loans of such Bank, plus all Facility Fees
and other amounts accrued for the account of such Bank or owed to it
hereunder (including any amounts under Section 2.12, 2.14 or 2.17);
provided, further, that if prior to any such transfer and assignment
the circumstances or event that resulted in such Bank's claim for
compensation under Section 2.12 or notice under Section 2.13 or the
amount paid pursuant to Section 2.17, as the case may be, cease to
cause such Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.13, or cease to result in
amounts being payable under Section 2.17, as the case may be, or if
such Bank shall waive its right to claim further compensation under
Section 2.12 or 2.17 in respect of such circumstances or event or shall
withdraw its notice under Section 2.13 or in respect of such
circumstances or event, as the case may be, then such Bank shall not
thereafter be required to make any such transfer and assignment
hereunder if it has not already done so.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Administrative Agent and the
Banks that as of the Closing Date and as of the date of each Borrowing, to the
extent provided in Article IV:
SECTION 3.01. Organization, Corporate Powers.
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia; each Subsidiary
which is not a Foreign Subsidiary is duly organized, validly existing and in
good standing, and each Foreign Subsidiary is duly organized and validly
existing, in each case under the laws of the jurisdiction of its organization;
(b) the Company and each of its Subsidiaries (i) has the corporate power and
authority to own its property and to carry on its business as now conducted and
as proposed to be conducted and (ii) is qualified to do business in every
jurisdiction where such qualification is necessary except where the failure so
to qualify would not have a materially adverse effect on the condition,
financial or otherwise, of the Company and the Subsidiaries taken as a whole;
and (c) the Company has the corporate power to execute, deliver and perform this
Agreement, to borrow hereunder and to execute and deliver the Notes.
SECTION 3.02. Authorization.
The execution, delivery and performance of this Agreement, the borrowings
hereunder and the execution and delivery of the Notes (a) have been duly
authorized by all requisite corporate action on the part of the Company and (b)
will not (i) violate (A) any provision of law, statute, rule or regulation, the
articles of incorporation or By-laws of the Company or any Subsidiary, (B) any
applicable order of any court or other agency of government or (c) any
indenture, any agreement for borrowed money, any bond, note or other similar
instrument or any other material agreement to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any of their
respective property is bound, (ii) be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement, bond, note, instrument or other material agreement or
(iii) result in the creation or imposition of any Lien of any nature whatsoever
upon any property or assets of the Company or any Subsidiary. This Agreement
constitutes, and the Notes when delivered hereunder will constitute, legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their respective terms.
SECTION 3.03. Governmental Approval.
No action, consent or approval of, or registration or filing with, or any
other action by any Governmental Authority is required in connection with the
execution, delivery and performance by the Company of this Agreement, the
borrowings hereunder or the execution, delivery and performance of the Notes.
SECTION 3.04. Financial Statements.
The Financial Statements (subject, in the case of the interim statements
included in the Financial Statements to year-end audit adjustments) fairly
present the financial condition and results of operations of the Company and the
Subsidiaries for the periods then ended. The balance sheets and the notes
thereto included in the Financial Statements disclose all material liabilities,
direct or contingent, of the Company and the Subsidiaries as of the dates
thereof to the extent required to be reflected thereon in accordance with GAAP.
The Financial Statements were prepared in accordance with GAAP.
SECTION 3.05. No Material Adverse Change.
There has been no material adverse change in the business, assets, condition
(financial or otherwise) or results of operations of the Company and the
Subsidiaries taken as a whole since June 30, 1997 (except as disclosed in the
Form 10Q for the second quarter of 1997).
SECTION 3.06. Subsidiaries.
Schedule 3.06 hereto sets forth a complete and accurate chart of all of the
Subsidiaries other than Designated Subsidiaries as of the Closing Date, showing
as of the Closing Date (as to each such Subsidiary) the jurisdiction of its
incorporation. All of the outstanding shares of each class of stock of each of
the Subsidiaries, other than qualifying or similar shares as may be required by
law, are owned as of the Closing Date (directly or indirectly) by the Company
and none of such shares are covered by outstanding options, warrants, rights of
conversion or purchase and similar rights at the date hereof. All the
outstanding capital stock of each of the Subsidiaries (other than the Designated
Subsidiaries) (x) has been validly issued, is fully paid and nonassessable and
(y) to the extent owned by the Company or one or more of the Subsidiaries (other
than the Designated Subsidiaries) (as shown in Schedule 3.06) is owned free and
clear of all Liens.
SECTION 3.07. Litigation.
Except as set forth in Schedule 3.07 hereto or in the Company's Reports on
Form 10-K, Form 10-Q, Form 8-K or any successor forms thereto, as filed with the
Securities and Exchange Commission, there are not any actions, suits or
proceedings at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Company, threatened (and
reasonably likely to be commenced) against or affecting the Company or any of
the Subsidiaries or any property or rights of the Company or any of the
Subsidiaries as to which there is a reasonable likelihood of an adverse
determination and which, if adversely determined, would individually or in the
aggregate materially impair the right of the Company and the Subsidiaries taken
as a whole to carry on business substantially as now being conducted or would
result in a Material Adverse Effect.
SECTION 3.08. Tax Returns.
The Company and each of the Subsidiaries have filed or caused to be filed
all Federal and state tax returns and all local tax returns which, to the
knowledge of the Company, are required to be filed and have paid or caused to be
paid all taxes as shown on such returns or on any assessment received by it or
by any of them to the extent that such taxes have become due, except taxes the
validity of which is being contested in good faith by appropriate proceedings
and with respect to which the Company or such Subsidiary, as the case may be,
shall have set aside on its books such reserves as are required by GAAP with
respect to any such tax so contested.
SECTION 3.09. Properties.
The Company and its Subsidiaries have good and marketable title to, or valid
leasehold interests in, all their respective properties and assets reflected on
the Consolidated balance sheet dated June 30, 1997, included in the Financial
Statements, except for such properties and assets as have been disposed of since
June 30, 1997 (a) as no longer used or useful in the conduct of their respective
businesses or (b) as have been disposed of in the ordinary course of business,
and all such properties and assets are free and clear of all mortgages, pledges,
liens, charges and other encumbrances of any nature whatsoever, except such as
are not prohibited by the provisions of Section 6.01.
SECTION 3.10. Employee Benefit Plans.
Each of the Company and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the Code (insofar
as it relates to the Plans, the Multiemployer Plans and related matters) and the
regulations and published interpretations thereunder. No Reportable Event has
occurred with respect to any Plan with vested unfunded liabilities in excess of
$10,000,000 administered by the Company or any of the ERISA Affiliates or any
administrator designated by the Company or any of its ERISA Affiliates. The
present value of all unfunded vested liabilities under Plans administered by the
Company, its ERISA Affiliates and administrators designated by the Company or
any of its ERISA Affiliates does not exceed in the aggregate 5% of the
Consolidated Net Worth. Neither the Company nor any ERISA Affiliate has incurred
any Withdrawal Liability that has not been fully satisfied and that materially
adversely affects the financial condition of the Company and its ERISA
Affiliates taken as a whole. Neither the Company nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and neither the
Company nor any ERISA Affiliate reasonably expects any Multiemployer Plan to be
in reorganization or to be terminated, where such reorganization or termination
has resulted or can reasonably be expected to result in an increase in the
contributions required to be made to such Plan that would materially and
adversely affect the financial condition of the Company and its ERISA Affiliates
taken as a whole.
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act.
Neither the Company nor any Subsidiary is an "investment company" as that
term is defined in or is otherwise subject to regulation under, the Investment
Company Act of 1940. Neither the Company nor any Subsidiary is a "holding
company" as that term is defined in, or is otherwise subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.12. Federal Reserve Regulations.
Neither the Company nor any Subsidiary is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock (within the meaning of Regulation U),
and no part of the proceeds of the Loans hereunder will be used directly or
indirectly to purchase or carry Margin Stock or to extend credit to others for
the purpose of directly or indirectly purchasing or carrying Margin Stock or for
any purpose that would violate, or be inconsistent with, the provisions of
Regulations G, U or X.
SECTION 3.13. No Material Misstatements.
To the best of the Company's knowledge, with respect to the Company, no
information, report, financial statement, exhibit or schedule furnished by or on
behalf of the Company to the Administrative Agent or any Bank in connection with
the negotiation of this Agreement or any Note or included therein contains any
misstatement of fact, or omitted or omits to state any fact necessary to make
the statements therein not misleading, where such misstatement or omission would
be material to the interests of the Banks with respect to the Company's
performance of its obligations hereunder.
SECTION 3.14. Compliance with Laws.
Neither the Company nor any of the Subsidiaries, nor any of their respective
properties or assets, is (a) in violation of, nor will the continued operation
of their properties and assets as currently conducted violate, any law, rule,
regulation or statute (including any zoning, building, environmental and safety
law, ordinance, code or approval or any building permits) or (b) in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.15. Environmental and Safety Matters.
Except as set forth in Schedule 3.15, the Company and each Subsidiary is in
compliance in all material respects with all Federal, state, local and other
statutes, ordinances, orders, judgments, rulings and regulations relating to
environmental pollution or to environmental regulation or control or to employee
health or safety, except where the failure to do so would not be reasonably
likely, individually or in the aggregate, to result in a Material Adverse
Effect. Except as set forth in Schedule 3.15, neither the Company nor any
Subsidiary has received notice of any material failure so to comply, which
non-compliance neither has been remedied nor is being contested in good faith by
the Company nor is the subject of the Company's good faith efforts to achieve
compliance. Except as set forth in Schedule 3.15, the Company's and the
Subsidiaries' facilities do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances, toxic pollutants or
substances similarly denominated, as those terms or similar terms are used in
the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, as amended by the Superfund Amendment
and Reauthorization Act, the Hazardous Materials Transportation Act, the Toxic
Substance Control Act, the Clean Air Act, as amended, the Clean Water Act, the
Occupational Health and Safety Act or any other applicable law relating to
environmental pollution or employee health and safety, in violation in any
material respect of any law or any regulations promulgated pursuant thereto,
except where the failure to do so would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect. Except as set forth
in Schedule 3.15, the Company is aware of no events, conditions or circumstances
involving environmental pollution or contamination or employee health or safety
that would be reasonably likely to result in a Material Adverse Effect.
SECTION 3.16. Use of Proceeds.
The proceeds of Revolving Loans and the Term Loan will be used to purchase
common stock of the Company, to refinance existing Funded Debt and to finance
working capital and other corporate purposes.
ARTICLE IV
Conditions of Lending
The obligations of the Banks to make Loans hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. Conditions to be Satisfied on Date of Each Borrowing.
In the case of each Borrowing to be made hereunder, including each Borrowing
in which Loans are refinanced with new Loans as contemplated by Section 2.05:
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 or 2.04, as the case may be.
(b) The representations and warranties set forth in Article III (except, in
the case of a refinancing that does not increase the aggregate principal amount
of the Loans of any Bank outstanding, the representations set forth in Sections
3.05 and 3.07) shall be true and correct in all material respects on and as of
the date of such Borrowing with the same effect as though such representations
and warranties had been made on and as of such date, except to the extent that
such representations and warranties expressly relate to an earlier date.
(c) At the time of each such Borrowing, the Company shall be in compliance
with all the terms and provisions set forth herein on its part to be observed or
performed, and immediately after such Borrowing no Default or Event of Default
shall have occurred and be continuing.
(d) Each Bank that shall not have previously received an appropriate Note
shall have received a duly executed Competitive Note, Revolving Note or Term
Note, as applicable, payable to its order and otherwise complying with the
provisions of Section 2.07.
Each Borrowing hereunder shall be deemed to constitute a representation and
warranty by the Company on the date of such Borrowing as to the matters
specified in paragraphs (b) and (c) of this Section.
SECTION 4.02. Conditions to be Satisfied on the Effective Date.
In the case, and as conditions to the making, of the initial Borrowing
hereunder, the Administrative Agent shall have received:
(a) executed copies of this Agreement, the Notes and the Subsidiary
Guaranty;
(b) opinions of counsel to the Company and the Guarantors relating to this
Agreement, the Notes and the Subsidiary Guaranty from counsel and in such form
reasonably acceptable to the Administrative Agent and the Banks;
(c) certified copies of articles of incorporation, bylaws, resolutions, good
standing certificates, or their equivalent, for the Company and the Guarantors;
(d) payment of all fees due in connection with the effectiveness of this
Agreement;
(e) evidence of termination of existing $500 million Competitive Advance and
Revolving Credit Facility Loan Agreement dated as of February 16, 1994, as
amended and modified, among the Company, the banks named therein, Chemical Bank,
as Administrative Agent, and NationsBank of North Carolina, N.A., as Co-Agent;
and
(f) copies of the offer to purchase relating to shares to be purchased with
proceeds of the initial Borrowings under this Agreement.
ARTICLE V
Affirmative Covenants
The Company covenants and agrees with the Administrative Agent and the Banks
that, so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, the Commitment Fee or any other expenses or amounts
payable hereunder shall be unpaid, unless the Required Banks shall otherwise
consent in writing, it will, and will cause each of the Subsidiaries to:
SECTION 5.01. Corporate Existence; Businesses and Properties.
Do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its corporate existence, material rights, licenses,
permits and franchises, comply with all laws and regulations applicable to it
and conduct its business in substantially the same manner as heretofore
conducted or as at the time permitted under applicable law; at all times
maintain and preserve all property used or useful in the conduct of its business
and keep the same in good repair, working order and condition, and from time to
time make, or cause to be made, all needful and proper repairs, renewals and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing contained in this Section 5.01 (a) shall prevent the Company or any
Subsidiary from ceasing or omitting to exercise any rights, licenses, permits or
franchises (including, in the case of a Subsidiary only, the corporate existence
thereof) which in the judgment of the Company can no longer be advantageously
exercised or (b) shall prevent the Company or any Subsidiary from selling,
abandoning or otherwise disposing of any property, the retention of which in the
judgment of the Company is inadvisable to the business of the Company or any
Subsidiary, or prevent any liquidation of any Subsidiary or any merger or
consolidation or sale thereof.
SECTION 5.02. Insurance.
(a) Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers; (b) maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses; (c) maintain in full force and effect public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by the Company or any Subsidiary, as the case may be, in
such amount as the Company or such Subsidiary, as the case may be, shall
reasonably deem necessary; and (d) maintain such other insurance as may be
required by law.
SECTION 5.03. Obligations and Taxes.
Pay all of its Indebtedness and obligations promptly and in accordance with
their terms and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become in default, as well as
all lawful claims for labor, materials and supplies or otherwise which, if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that neither the Company nor any of the Subsidiaries shall be
required to pay and discharge or to cause to be paid and discharged any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Company or
such Subsidiary, as the case may be, shall set aside on its books such reserves
as are required by generally accepted accounting principles with respect to any
such tax, assessment, charge, levy or claim so contested.
SECTION 5.04. Financial Statements, Reports, etc.
In the case of the Company, furnish directly to the Administrative Agent and
to each of the Banks:
(a) within 120 days after the end of each fiscal year of the Company (being
December 31 in each calendar year), its Consolidated balance sheets,
Consolidated statements of income and Consolidated statements of cash flows
showing the Consolidated financial condition of the Company and the Subsidiaries
as of the close of such fiscal year and the results of its operations and the
operations of the Subsidiaries during such year, all the foregoing consolidated
financial statements to be audited by Coopers & Xxxxxxx, independent public
accountants, or other independent public accountants acceptable to the Required
Banks and accompanied by an opinion of such accountant (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results of
operations of the Company and the Subsidiaries on a consolidated basis in
accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters
of each fiscal year, unaudited Consolidated balance sheets, Consolidated
statements of income and Consolidated statements of cash flows showing the
financial condition and results of operations of the Company and the
Subsidiaries on a consolidated basis as of the end of each such quarter and for
the then elapsed portion of the fiscal year, certified by a Financial Officer of
the Company as presenting fairly the financial position and results of
operations of the Company and such Subsidiaries and as having been prepared in
accordance with GAAP (except for such changes therein as are approved by the
independent accountants for the Company), in each case subject to normal
year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person
referred to therein (which certificate furnished by the independent accountants
referred to in paragraph (a) above may be limited to the best of its knowledge
and to accounting matters and may disclaim responsibility for legal
interpretations) (i) certifying that no Default or Event of Default has
occurred, or, if such a Default or Event of Default has occurred, specifying the
nature and extent thereof and, in the case of the certificate furnished by a
Financial Officer of the Company, specifying any corrective action taken or
proposed to be taken with respect thereto and (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the covenants contained in Section 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not
required to be furnished by any other provision of this Section 5.04, (i) copies
of all proxy statements, financial statements and reports that the Company sends
to its stockholders and (ii) copies of all regular, periodic and special
reports, and all registration statements relating to transactions requiring a
vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the
Securities Act of 1933, which the Company or any Subsidiary files with the
Securities and Exchange Commission, or any Governmental Authority which may be
substituted therefor, or with any national securities exchange, or distributed
to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and condition (financial or otherwise) of the
Company and the Subsidiaries as each Bank through the Administrative Agent may
reasonably request; provided, however, that the Company shall not be obligated
to disclose, or to permit any examination which will disclose, technical
knowledge or confidential trade information, except where appropriate safeguards
exist that prevent dissemination of such information in a manner detrimental to
the Company's competitive position.
SECTION 5.05. Litigation and Other Notices.
Give the Administrative Agent and each Bank prompt written notice of the
following:
(a) any Default or Event of Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of (or any threat or notice of intention of
any person to file or commence where such filing or commencement is reasonably
likely) any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority, against the Company or any Affiliate thereof
as to which there is a reasonable likelihood of an adverse determination and
that, if adversely determined, could reasonably be anticipated to result in
Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be anticipated
to result in, a Material Adverse Effect.
SECTION 5.06. ERISA.
(a) Comply in all material respects with the applicable provisions of ERISA
and the Code (insofar as it relates to the Plans, the Multiemployer Plans or
related matters) and (b) furnish to the Administrative Agent and each Bank, (i)
as soon as possible after, and in any event within 30 days after any Executive
Officer of the Company or any ERISA Affiliate knows or has reason to know that,
any Reportable Event with respect to any Plan with vested unfunded liabilities
in excess of $10,000,000 has occurred, a statement of a Financial Officer
setting forth details as to such Reportable Event and the action that the
Company proposes to take with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to PBGC, (ii) promptly after
receipt thereof, a copy of any notice the Company or any Subsidiary may receive
from PBGC relating to the intention of PBGC to terminate any Plan with vested
unfunded liabilities in excess of $10,000,000 or to appoint a trustee to
administer any such Plan, (iii) within 10 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code a notice of failure to make
a required installment or other payment with respect to a Plan with vested
unfunded liabilities in excess of $10,000,000, a statement of a Financial
Officer setting forth details as to such failure and the action that the Company
proposes to take with respect thereto, together with a copy of any such notice
given to the PBGC, and (iv) promptly and in any event within 30 days after
receipt thereof by the Company or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, both within the meaning of Title IV of ERISA.
SECTION 5.07. Access to Premises and Records.
Maintain financial records in accordance with GAAP, and permit
representatives of the Administrative Agent and of each Bank that shall make a
request therefor through the Agent to have access to such financial records and
the premises of the Company and each Subsidiary at reasonable times and to make
such extracts from such records as such representatives deem necessary, and
permit any such representatives to discuss the affairs, finances and condition
of the Company or any Subsidiary with the officers thereof and independent
accountants therefor.
SECTION 5.08. Subsidiary Guarantors.
Where Domestic Subsidiaries of the Company which are not Guarantors hereunder
("Non-Guarantor Domestic Subsidiaries") shall at any time constitute more than
(the "Threshold Requirement"):
(a) in any instance for any such Non-Guarantor Domestic
Subsidiary, five percent (5%) of consolidated assets for the
Consolidated Group or five percent (5%) of consolidated revenues for
the Consolidated Group, or
(b) in the aggregate for all such Non-Guarantor Domestic
Subsidiaries, ten percent (10%) of consolidated assets for the
Consolidated Group or ten percent (10%) of consolidated revenues for
the Consolidated Group,
then the Company shall (i) promptly notify the Administrative Agent thereof, and
promptly cause such Domestic Subsidiary or Domestic Subsidiaries to become a
Guarantor by execution of a Joinder Agreement, such that immediately after
joinder as a Guarantor, the remaining Non-Guarantor Domestic Subsidiaries shall
not in any instance, or in the aggregate, exceed the Threshold Requirement, and
(ii) deliver with the Joinder Agreement, supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and opinions
of counsel as the Administrative Agent may reasonably request.
SECTION 5.09. Use of Proceeds.
Proceeds of the Loans will be used solely for the purposes provided in
Section 3.16.
ARTICLE VI
Negative Covenants
The Company covenants and agrees with the Administrative Agent and the Banks
that, so long as this Agreement shall remain in effect or the principal of or
interest on any Note, the Commitment Fee or any other expenses or amounts
payable hereunder shall be unpaid, unless the Required Banks otherwise consent
in writing, it will not, and it will not cause, permit or suffer any of the
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens, etc.
Create, incur, assume or suffer to exist any Lien upon or with respect to
any of its assets or properties (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired or assign or
otherwise convey any right to receive income or revenues; provided that the
foregoing restrictions shall not apply to mortgages, deeds of trust, pledges,
liens, security interests or other charges or encumbrances:
(a) for taxes, assessments or governmental charges or levies on property of
the Company or any Subsidiary if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and with respect to which the Company or Subsidiary
shall have set aside adequate reserves in accordance with GAAP with respect
thereto;
(b) imposed by law, such as carrier's, warehousemen's and mechanics' liens
and other similar liens, which arise in the ordinary course of business with
respect to obligations not yet due or being contested in good faith and by
appropriate proceedings and with respect to which the Company or Subsidiary
shall have set aside adequate reserves in accordance with GAAP with respect
thereto;
(c) arising out of pledges or deposits under workmen's compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(d) other attachments, liens, charges, pledges, deposits, encumbrances, or
other security interests incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit, and which do not
in the aggregate materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business;
(e) Liens on the assets or properties of a Subsidiary in favor of the
Company or another Subsidiary to secure Indebtedness of such Subsidiary to the
Company or such other Subsidiary;
(f) any Lien on property or assets of the Company or any Subsidiary existing
on the date hereof and set forth on Schedule 6.01 and any Lien that replaces
such an existing Lien; provided, however, that the principal amount of the
Indebtedness secured by the replacing Lien does not exceed the principal amount
of Indebtedness secured by such existing Lien at the time of replacement of the
existing Lien or cover property different from the property covered by the
existing Lien;
(g) Liens on property or assets of the Company or any Subsidiary granted in
connection with Sale and Lease-Back Transactions, provided that the aggregate
amount of Attributable Debt in connection with such Sale and Lease-Back
Transactions shall not at any time be in excess of $80,000,000; and
(h) Liens other than those referred to in subparagraphs (a) through (g)
above, provided that the aggregate amount of all Indebtedness that is secured or
evidenced by Liens other than those referred to in subparagraphs (a) through (e)
and (g) above does not at any time exceed an amount equal to 10% of Consolidated
Net Worth.
SECTION 6.02. Indebtedness of Subsidiaries.
Permit any of the Subsidiaries to create, incur or assume any Indebtedness
other than (a) the Subsidiary Guaranty, (b) Indebtedness for borrowed money
existing on the date hereof and set forth in Schedule 6.02 and any extensions,
renewals or replacements of such Indebtedness, (c) Indebtedness incurred in
connection with any Sale and Lease-Back Transaction permitted under Section
6.01(g), (d) Indebtedness owed to the Company or to any other direct or indirect
wholly-owned Subsidiary and (e) Indebtedness (in addition to that specified in
(a) through (d) above) in an aggregate principal amount as to all Subsidiaries
not in excess of $20,000,000.
SECTION 6.03. Compliance with Regulations G, U and X.
Incur, create or assume any Indebtedness or other liability or make any
investment, capital contribution, loan, advance or extension of credit or take
or permit to be taken any other action or permit to exist any event permitted by
this Credit Agreement but for the provisions of this Section 6.03, if such
action or event would result in this Agreement, the Loans hereunder, the use of
the proceeds thereof or the other transactions contemplated hereby violating or
being inconsistent with Regulations G, U or X, including without limitation the
provisions of said Regulations relating to withdrawal and substitution of
collateral.
SECTION 6.04. Mergers, Consolidations and Sales of Assets.
Merge into or consolidate with any other person, or permit any other person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) or any
capital stock of any Subsidiary, except that (a) the Company and any Subsidiary
may purchase and sell inventory in the ordinary course of business, (b) if at
the time thereof and immediately after giving effect thereto on a Pro Forma
Basis no Default or Event of Default shall have occurred and be continuing (i)
any wholly owned Subsidiary or any other person may merge into the Company in a
transaction in which the Company is the surviving corporation, (ii) any wholly
owned Subsidiary may merge into or consolidate with any other wholly owned
Subsidiary in a transaction in which the surviving entity is a wholly owned
Subsidiary and no person other than the Company or a wholly owned Subsidiary
receives any consideration and (iii) so long as (A) the Ratings of the surviving
corporation are better than or equal to the Ratings of the Company and (B) the
surviving corporation agrees in writing to assume the obligations of the Company
under this Agreement, the Company may merge into or consolidate with any other
person, (c) the Company may sell 100% of the capital stock of any Subsidiary for
fair market value, as determined in good faith by the Company's board of
directors, provided such sale does not constitute a sale of all or substantially
all of the Company's assets and (d) the Company may sell any portion of the
capital stock of any Subsidiary in connection with the establishment of a joint
venture for the purpose of developing a product or business related to any of
the Company's existing lines of business as of the date of this Agreement.
SECTION 6.05. Consolidated Leverage Ratio.
Permit the Consolidated Leverage Ratio as of the end of each fiscal quarter
to be greater than 3.5:1.0.
SECTION 6.06. Consolidated Fixed Charge Coverage Ratio.
Permit the Consolidated Fixed Charge Coverage Ratio as of the end of each
fiscal quarter to be less than 1.25:1.0.
SECTION 6.07. Consolidated Net Worth.
Permit Consolidated Net Worth at any time to be less than an amount equal to
85% of Consolidated Net Worth at June 30, 1997 (after adjustment to give effect
to share repurchases within one year after the Closing Date contemplated in
connection herewith up to $435,000,000 plus, beginning with the fiscal year
ending December 31, 1998, as of the end of each fiscal year, 50% of Consolidated
Net Income (but not less than zero) for the year then ended, such increases to
be cumulative.
SECTION 6.08 Loans and Investments to Foreign Subsidiaires.
Permit additional loans and investments (other than extension of normal
credit terms in connection with the sale of inventory or providing of services
in the ordinary course of business) by the Company and its Domestic Subsidiaries
after the Closing Date (that is, in excess of loans and investments existing on
the Closing Date) to exceed $15,000,000 at any time outstanding.
ARTICLE VII
Events of Default
In the case of the happening of any of the following events (hereinafter
called Events of Default):
(a) any representation or warranty made or deemed made in connection with
this Agreement or with the execution and delivery of the Notes or the borrowings
hereunder or any statement or representation made in any report, certificate,
financial statement or other instrument furnished by the Company to the
Administrative Agent or the Banks pursuant to this Agreement or shall prove to
have been false or misleading in any respect material to the interests of the
Banks with respect to the Company's performance of its obligations hereunder
when made or delivered or when deemed made in accordance with the terms hereof;
(b) default shall be made in the payment of the principal of or interest on
any Loan or of the Commitment Fee or any other amount due under this Agreement,
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise and in the case of interest on the Notes, the Commitment Fee or such
other amounts, except principal, such default shall continue unremedied for a
period of 10 days;
(c) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 5.01, 5.05 or 5.08 or in
Article VI;
(d) default shall be made in the due observance or performance of any other
covenant, condition or agreement to be observed or performed by the Company or
any Subsidiary pursuant to the terms hereof or any of the other Credit Documents
and such default shall continue unremedied for 30 days after written notice
thereof to the Company by the Administrative Agent or the Required Banks;
(e) the Company or any Subsidiary shall fail to pay any principal or
interest, regardless of amount, due in respect of Indebtedness in a principal
amount greater than $25,000,000, owing by the Company or such Subsidiary
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Indebtedness;
or the Company or any Subsidiary shall fail to perform any term, covenant or
agreement on its part to be performed under any agreement or instrument
evidencing or securing or relating to any such Indebtedness, if the effect of
such failure is to cause or to permit the holder or holders of such Indebtedness
to accelerate the maturity of such Indebtedness;
(f) the Company or any Subsidiary other than a Designated Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any such proceeding or the filing of
any such petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or any
Subsidiary other than a Designated Subsidiary or for a substantial part of its
property, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take corporate action for
the purpose of effecting any of the foregoing;
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of the Company or any Subsidiary other than a Designated Subsidiary, or
of a substantial part of its property, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or any
Subsidiary other than a Designated Subsidiary or for a substantial part of its
property or (iii) the winding-up or liquidation of the Company or any Subsidiary
other than a Designated Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for 30 days;
(h) one or more final judgments from which no further appeal can be taken
for the payment of money in an aggregate amount in excess of $25,000,000 shall
be rendered against the Company and/or a Subsidiary, and the same shall remain
undischarged for a period of 60 consecutive days during which execution shall
not be effectively stayed;
(i) (i) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section 412(n)(1)
of the Code) shall have occurred with respect to any Plan or Plans with vested
unfunded liabilities in an aggregate amount in excess of $10,000,000 and, within
30 days after the reporting of such Reportable Event to the Administrative Agent
or after the receipt by the Administrative Agent of the statement required
pursuant to Section 5.06, the Administrative Agent shall have notified the
Company in writing that (A) the Required Banks have made a determination that,
on the basis of such Reportable Event or Reportable Events or the failure to
make a required payment, there are reasonable grounds for the termination of
such Plan or Plans by the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer such Plan or Plans or for the
imposition of a Lien in favor of such Plan or Plans and (B) as a result thereof
an Event of Default exists hereunder; or (ii) a trustee shall be appointed by a
United States District Court to administer any Plan with vested unfunded
liabilities in excess of $10,000,000; or (iii) the PBGC shall institute
proceedings to terminate any Plan with vested unfunded liabilities in excess of
$10,000,000;
(j) (i) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan, (ii) the Company or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or is not in fact
contesting such Withdrawal Liability in a timely and appropriate manner and
(iii) the amount of the Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or dates of
such notification), either (A) exceeds $10,000,000 or requires payments
exceeding $2,500,000 in any year or (B) is less than $10,000,000 but remains
unpaid 30 days after such payment is due;
(k) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if solely as a result of such reorganization or termination the aggregate annual
contributions of the Company and its ERISA Affiliates to all Multiemployer Plans
that are then in reorganization or have been or are being terminated have been
or will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an amount
exceeding $2,500,000;
(l) there shall have occurred a Change in Control; or
(m) the guaranty given by any Guarantor shall cease to be in full force and
effect, or any Guarantor shall deny or disaffirm its obligations under the
guaranty;
then, and in every such event and at any time thereafter during the continuance
of such event, the Administrative Agent may, and upon written request from the
Required Banks shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the Commitments
and (ii) declare the Loans to be forthwith due and payable, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Company accrued hereunder, shall become forthwith due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Company, anything contained herein or in the
Notes to the contrary notwithstanding. Notwithstanding the foregoing, if an
Event of Default specified in paragraph (f) or (g) above occurs with respect to
the Company or any Subsidiary, the Commitments shall automatically terminate and
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Company accrued hereunder,
shall become immediately due and payable, without any action by any Bank or the
Administrative Agent and without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
NationsBank, N.A. is hereby appointed to act as Administrative Agent on behalf
of the Banks. Each of the Banks, and each subsequent holder of any Note by its
acceptance thereof, hereby irrevocably authorizes the Administrative Agent to
take such actions on behalf of such Bank or holder and to exercise such powers
as are specifically delegated to the Administrative Agent by the terms and
provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Banks, without hereby limiting any implied authority, (a) to receive on
behalf of the Banks all payments of principal of and interest on the Loans and
all other amounts due to the Banks hereunder, and promptly to distribute to each
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Banks to the Company of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Bank copies
of all notices, financial statements and other materials delivered by the
Company pursuant to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Company of any of the terms, conditions, covenants or agreements contained in
this Agreement. The Administrative Agent shall not be responsible to the Banks
or the holders of the Notes for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, the Notes or any other
instruments or agreements. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof until it shall have
received from the payee of such Note notice, given as provided herein, of the
transfer thereof in compliance with Section 9.04. The Administrative Agent shall
in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Banks (or such
greater percentage of Banks as may be required hereunder) and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Banks and each subsequent
holder of any Note.
The Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any responsibility to the Company on account of
the failure of or delay in performance or breach by any other Bank or the
Company of any of their respective obligations hereunder or in connection
herewith. The Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Banks hereby acknowledge that the Administrative Agent shall be under no
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Banks.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Banks and the Company. Upon any such resignation, the Required
Banks, with the consent of the Company (which consent shall not be unreasonably
withheld), shall have the right to appoint a successor. If no successor shall
have been so appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent which shall be a bank having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder and the Notes issued to it,
the Administrative Agent in its individual capacity and not as Administrative
Agent shall have the same rights and powers as any other Bank and may exercise
the same as though it were not the Administrative Agent, and the Administrative
Agent and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent.
Each Bank agrees (i) to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Banks by the Administrative Agent,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Banks, which shall not have been reimbursed
by the Company and (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any action taken or omitted by it or any of them under this Agreement, to the
extent the same shall not have been reimbursed by the Company; provided,
however, that no Bank shall be liable to the Administrative Agent or any such
director, officer, employee or agent for any portion of such liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Bank acknowledges that it has, independently and without reliance upon
the Administrative 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 Administrative Agent or any other
Bank and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document
furnished hereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.
Except as otherwise expressly provided herein, notices and other
communications provided for herein shall be in writing and shall be delivered or
mailed or sent by telecopy addressed,
(a) if to the Company, in all cases to it at
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention of Secretary;
(b) if to NationsBank, N.A., either individually or in its capacity as
Administrative Agent, in all cases to it at
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention of: Agency Services; and
(c) if to any other Bank, in all cases to it at the address listed next to
its name in Schedule 2.01.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given (i) on
the date of receipt, if delivered by hand or overnight courier service or sent
by telecopy, (ii) on the date five Business Days after dispatch if sent by
registered or certified mail, and (iii) on the date of receipt, if by telephone,
in each case addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party.
SECTION 9.02. No Waivers; Amendments.
(a) No failure or delay of the Administrative Agent or of any Bank in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Banks
and holders of the Notes hereunder are cumulative and not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or the Notes nor consent to any departure by the Company
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances. Each holder of any of the
Notes shall be bound by any amendment, modification, waiver or consent
authorized as provided herein, whether or not such Note shall have been marked
to indicate such amendment, modification, waiver or consent.
(b) Neither this Agreement nor any provision hereof may be amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Company and the Required Banks; provided, however, that no such agreement
shall (i) decrease the principal amount of, or extend the maturity of or the
scheduled dates for the payment of principal of or interest on, any Loan or
waive or excuse any such payment or any part thereof or reduce the rate of
interest on any Loan, without the written consent of each holder affected
thereby, (ii) increase or extend the Commitment or decrease the Facility Fees of
any Bank without the written consent of each Bank affected thereby, (iii) amend
or modify the definition of "Required Banks" or the provisions of this Section
9.02 or Section 9.08 without the written consent of each Bank, (iv) release all
or substantially all of the Guarantors from their obligations under the
Subsidiary Guaranty, or (v) amend, modify or otherwise affect the rights or
duties of the Administrative Agent hereunder, without the written consent of the
Administrative Agent. Each Bank and holder of any Note shall be bound by any
modification or amendment authorized by this Section regardless of whether its
Notes shall be marked to make reference thereto, and any consent by any Bank or
holder of a Note pursuant to this Section shall bind any person subsequently
acquiring a Note from it, whether or not such Note shall be so marked.
SECTION 9.03. Right of Setoff.
If an Event of Default shall have occurred and be continuing that in the
good faith judgment of any Bank shall materially compromise in any respect such
Bank's interest as a Bank hereunder, such Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Bank
to, or for the credit or the account of, the Company against any of and all the
obligations of the Company now or hereafter existing under this Agreement held
by such Bank, irrespective of whether or not such Bank shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Bank under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Bank may have.
SECTION 9.04. Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the permitted successors and assigns
of such party; and all covenants, promises and agreements by or on behalf of the
Company, the Administrative Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Bank may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it and the Notes
held by it); provided, however, that (i) except in the case of an assignment to
a Bank or an Affiliate of such Bank, each of the Company and the Administrative
Agent must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (iii) the amount of the Commitment of the
assigning Bank subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than fifty percent (50%) of the
assigning Bank's respective Commitment and not less than $15,000,000 (except in
the case of assignments to a Bank or an affiliate of a Bank) without the prior
written consent of the Company, which consent will not be unreasonably withheld
or delayed, and the Administrative Agent, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with the Note or Notes subject to such assignment and a
processing and recordation fee of $3,500 and (v) the assignee, if it shall not
be a Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (A) the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Bank under this Agreement and (B) the assigning Bank
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.12, 2.13, 2.17 and 9.05 (to the extent that such Bank's entitlement
to such benefits arose out of such Bank's position as a Bank prior to the
applicable assignment), as well as to any Fees accrued for its account and not
yet paid). Notwithstanding the foregoing, any Bank assigning its rights and
obligations under this Agreement may retain any Competitive Loans made by it
outstanding at such time, and in such case shall retain its rights hereunder in
respect of any Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Bank thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby, free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto, or the financial
condition of the Company or any Subsidiary or the performance or observance by
the Company or any Subsidiary of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Bank 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 action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance and the names and
addresses of the Banks, and the Commitment of, and principal amount of the Loans
owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive in the absence of
manifest error and the Company, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register pursuant to the terms hereof
as a Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Company and any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Bank and an assignee together with the Note or Notes subject to
such assignment, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Bank hereunder), the processing
and recordation fee referred to in paragraph (b) above and, if required, the
written consent of the Company and the Administrative Agent to such assignment,
the Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Banks. Within five Business Days after receipt of notice,
the Company, at its own expense, shall execute and deliver to the Administrative
Agent, in exchange for the surrendered Committed Note and/or Competitive Note,
(x) a new Competitive Note to the order of such assignee in an amount equal to
the Total Commitment and a new Committed Note to the order of such assignee in
an amount equal to the portion of the Commitment assumed by it pursuant to such
Assignment and Acceptance and, (y) if the assigning Bank has retained a
Commitment, a new Committed Note to the order of such assigning Bank in a
principal amount equal to the Commitment retained by it. Such new Committed Note
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Committed Note; such new Notes shall be dated the
date of the surrendered Notes which they replace and shall otherwise be in
substantially the form of Exhibit B-1 or B-2 hereto, as appropriate. Canceled
Notes shall be returned to the Company.
(f) Each Bank may without the consent of the Company or the Administrative
Agent sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it and the Notes held by it);
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12, 2.13 and 2.17 to the same extent as if
they were Banks and (iv) the Company, the Administrative Agent and the other
Banks shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement, and such Bank
shall retain the sole right to enforce the obligations of the Company relating
to the Loans and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any Fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending the final scheduled
maturity of the Loans or any date scheduled for the payment of interest on the
Loans or extending the Commitments).
(g) Any Bank or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company furnished to such Bank by or
on behalf of the Company, provided that, prior to any such disclosure of
information designated by the Company as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information. It
is understood that confidential information relating to the Company would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Any Bank may at any time assign all or any portion of its rights under
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release a Bank from any of its obligations
hereunder.
SECTION 9.05. Expenses; Indemnity.
The Company agrees to pay all reasonable out-of-pocket expenses incurred by
the Administrative Agent in connection with the preparation of this Agreement or
in connection with any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Administrative Agent or any Bank in connection
with the enforcement or protection of their rights in connection with this
Agreement or in connection with the Loans made or the Notes issued hereunder,
including the reasonable fees, charges and disbursements of Xxxxx & Xxx Xxxxx,
PLLC, counsel for the Administrative Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel for the Administrative Agent or any Bank. The Company further
agrees that it shall indemnify the Banks from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement.
(i) The Company agrees to indemnify the Administrative Agent, each Bank,
each of their Affiliates and each of the foregoing persons' respective
directors, officers, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any instrument or agreement
contemplated hereby, the arrangement or syndication of the credit facilities
provided for hereby, performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
SECTION 9.06. Survival of Agreements, Representations and Warranties,
etc.
All warranties, representations and covenants made by the Company herein or
in any certificate or other instrument delivered by it or on its behalf in
connection with this Agreement shall be considered to have been relied upon by
the Banks and shall survive the making of the Loans herein contemplated and the
issuance and delivery to the Banks of the Notes regardless of any investigation
made by the Banks or on their behalf and shall continue in full force and effect
so long as any amount due or to become due hereunder is outstanding and unpaid
and so long as the Commitments have not been terminated. All statements in any
such certificate or other instrument shall constitute representations and
warranties by the Company hereunder.
SECTION 9.07. Governing Law.
This Agreement and the Notes shall be construed in accordance with and
governed by the laws of the Commonwealth Of Virginia.
SECTION 9.08. Sharing of Setoffs.
If one or more Events of Default shall occur, the holder of any Loan shall
have the right, in addition to and not in limitation of any right which any such
holder may have under applicable law or otherwise, to set off against the unpaid
balance of any Loan or Loans or participation therein held by it any debt owing
to the Company by such holder, including, without limitation, any funds in any
deposit account maintained by the Company with such holder, and nothing in this
Agreement shall be deemed a waiver or prohibition of any Bank's right of
banker's lien or setoff. Each holder of a Loan agrees that, if it shall through
the exercise of a right of banker's lien, setoff, counterclaim or otherwise
obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a
result of which the unpaid principal portion of its Loans shall be
proportionately less than the unpaid principal portion of the Loans of any other
Bank, it shall be deemed to have simultaneously purchased from such other holder
a participation in the Loan held by such other holder so that the aggregate
unpaid principal amount of the Loan or Loans and participations in Notes held by
each holder shall be in the same proportion to the aggregate unpaid principal
amount of all Loans then outstanding as the principal amount of such Loan held
by it prior to such exercise of banker's lien, setoff or counterclaim or receipt
of other payment was to the principal amount of all Loans outstanding prior to
such exercise of banker's lien, setoff or counterclaim or receipt of other
payment, and it shall promptly remit to each such holder the amount of the
participation thus deemed to have been purchased. The Company expressly consents
to the foregoing arrangements and agrees that any holder of a participation in a
Loan so acquired may exercise any and all rights of banker's lien, setoff,
counterclaim or otherwise with respect to any and all moneys owing by such
holder to the Company as fully as if such holder were a holder of a Loan in the
amount of such participation. If all or any portion of any such excess payment
is thereafter recovered from the holder which received the same, the purchase
provided for herein shall be deemed to have been rescinded to the extent of such
recovery, without interest.
SECTION 9.09. Interest Rate Limitation.
Notwithstanding anything herein or in the Notes to the contrary, if at any
time the applicable interest rate, together with all fees and charges which are
treated as interest under applicable law (collectively the "Charges"), as
provided for herein or in any other document executed in connection herewith, or
otherwise contracted for, charged, received, taken or reserved by any Bank,
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Bank in accordance
with applicable law, the rate of interest payable under the Notes held by such
Bank, together with all Charges payable to such Bank, shall be limited to the
Maximum Rate.
SECTION 9.10. Entire Agreement.
This Agreement constitutes the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement. Nothing in
this Agreement, expressed or implied, is intended to confer upon any party other
than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 9.11. Waiver of Jury Trial.
Each party hereto hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
this Agreement. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 9.11.
SECTION 9.12. Severability.
In the event any one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
9.16.
SECTION 9.14. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a) The Company hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any Virginia State court
or Federal court of the United States of America sitting in Richmond, Virginia,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such Virginia State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Bank may otherwise
have to bring any action or proceeding relating to this Agreement against the
Company or its properties in the courts of any jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any Virginia State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.16. Binding Effect.
This Agreement shall become effective when it shall have been executed by
the Company and the Administrative Agent and when the Administrative Agent shall
have received copies hereof which, when taken together, bear the signatures of
each Bank, and thereafter shall be binding upon and inure to the benefit of the
Company, the Administrative Agent and each Bank and their respective successors
and assigns, except that the Company shall not have the right to assign or
delegate any of its rights or duties hereunder or any interest herein without
the prior consent of all the Banks.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers as of the day and year first above
written.
ETHYL CORPORATION,
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
NATIONSBANK, N.A.,
acting individually and as
Administrative Agent,
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Schedule 2.01
to Credit Agreement
Lenders and Commitments
Revolving Term Loan
Lender Commitment Percent Commitment Percent
------ ---------- ------- ---------- -------
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, Agency Services
Ph: (000) 000-0000
Fx: (000) 000-0000
$600,000,000 100.0000% $300,000,000 100.0000%
with a copy to:
NationsBank, N.A.
0000 Xxxx Xxxx Xxxxxx
0xx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxx
Ph: (000) 000-0000
Fx: (000) 000-0000
Schedule 3.07
Litigation
----------
None.
Schedule 3.15
Environmental and Safety Matters
Ethyl Corporation
1. People of the State of Illinois filed suit against Ethyl Petroleum
Additives, Inc. December 16, 1996 (amended May 1997) for alleged
violations of Illinois air laws and regulations in connection with
alleged emissions for tertiary nonyl mercaptan from its Sauget
facility. Illinois is seeking $50,000 for each violation of the act
and $10,000 for each day during which the violation continued
thereafter. Ethyl is contesting the case; the parties are in
negotiations to resolve the matter.
2. The Texas Natural Resource Conservation Commission served a Notice of
Executive Director's Preliminary Report and Petition for a TNRCC Order
Assessing Administrative Penalties and Requiring Certain Actions of
Ethyl Corporation on April 7, 1995 in connection with alleged
violations of the Solid Waste Disposal Act, Texas Health and Safety
Code. The TNRCC sought $508,320 in administrative penalties. Ethyl is
contesting the petition; the parties are in negotiations to resolve
the matter.
Schedule 6.01
Liens
-----
None.
EXHIBIT A-1
FORM OF
COMPETITIVE BID REQUEST
NationsBank, N.A., as Administrative Agent
for the Banks referred to below
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Agency Services
[Date]
Ladies and Gentlemen:
The undersigned, Ethyl Corporation, a Virginia corporation (the
"Company"), refers to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 26, 1997 (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Company, the
Banks party thereto, and NationsBank, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Company hereby gives you
notice pursuant to Section 2.03(a) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Competitive Borrowing is requested to be
made:
(A) Interest Rate Basis(1)
(B) Date of Competitive Borrowing
(which is a Business Day)
------------------
(1) Eurodollar Competitive Loan or Fixed Rate Loan.
(C) Interest Period and the last
day thereof(1)
(D) Principal Amount of
Competitive Borrowing(2) $ $ $
------------------
(1) Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
(2) Not less than $5,000,000 and in integral multiples thereof.
Upon acceptance of any or all of the Loans offered by the Banks in
response to this request, the Company shall be deemed to affirm as of such date
the representations and warranties made in the Credit Agreement to the extent
specified in Article IV thereof.
Very truly yours,
ETHYL CORPORATION,
By
Title: (Responsible Officer)
Copy to:
NationsBank, N.A.
0000 Xxxx Xxxx Xxxxxx
0xx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxx
EXHIBIT A-2
FORM OF
COMPETITIVE BID INVITATION
[Name of Bank]
[Address]
[Date]
Ladies and Gentlemen:
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of August 26, 1997 (as amended, modified, extended
or restated from time to time, the "Credit Agreement"), among Ethyl Corporation,
a Virginia corporation (the "Company"), the Banks party thereto and NationsBank,
N.A., as Administrative Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Company made a Competitive Bid Request on _______, 19__, pursuant
to Section 2.03(a) of the Credit Agreement, and in that connection you are
invited to submit a Competitive Bid by [Date]/[Time]. Your Competitive Bid must
comply with Section 2.03(b) of the Credit Agreement and the terms set forth
below on which the Competitive Bid Request was made:
(A) Interest Rate Basis
(B) Date of Competitive Borrowing
(C) Interest Period and the last
day thereof
(D) Principal Amount of
Competitive Borrowing $
-------------------
(1) The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and
(ii) in the case of Fixed Rate Loans, no later than 9:30 a.m., New York
City time, on the Business Day of a proposed Competitive Borrowing.
Very truly yours,
NATIONSBANK, N.A.,
as Administrative Agent,
By
Title:
EXHIBIT A-3
FORM OF
COMPETITIVE BID
NationsBank, N.A., as Administrative Agent
for the Banks referred to below
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Agency Services
[Date]
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Competitive Advance and
Revolving Credit Facility Agreement dated as of August 26, 1997 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
Ethyl Corporation, a Virginia corporation (the "Company"), the Banks party
thereto and NationsBank, N.A., as Administrative Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned hereby makes a Competitive Bid
pursuant to Section 2.03(b) of the Credit Agreement, in response to the
Competitive Bid Request made by the Company on _______, 19__, and in that
connection sets forth below the terms on which such Competitive Bid is made:
(A) Interest Period and last
day thereof
(B) Principal Amount(1) $ $ $
(C) Competitive Bid Rate(2)
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Company
upon acceptance by the Company of this bid in accordance with Section 2.03(d) of
the Credit Agreement.
Very truly yours,
[NAME OF BANK],
By
Title:
Copy to:
NationsBank, N.A.
0000 Xxxx Xxxx Xxxxxx
0xx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxx
----------------------
(1) Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $5,000,000. Multiple bids will be
accepted by the Administrative Agent.
(2) I.e., LIBOR + or - __%, in the case of Eurodollar Competitive Loans or __%,
in the case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF
COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
NationsBank, N.A., as Administrative Agent
for the Banks referred to below
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, Ethyl Corporation (the "Company"), refers to the
Competitive Advance and Revolving Credit Facility Agreement dated as of August
26, 1997 (as amended, modified, extended or restated from time to time, the
"Credit Agreement"), among the Company, the Banks party thereto and NationsBank,
N.A., as Administrative Agent.
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
___________ and in accordance with Section 2.03(d) of the Credit Agreement, we
hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Bank
$ [%]/[+/-.___%]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Bank
$ [%]/[+/-.___%]
$
The $________ should be deposited in Chemical Bank account number
[____________] on [date].
Very truly yours,
ETHYL CORPORATION,
By
Name:
Title:
EXHIBIT A-5
FORM OF
COMMITTED BORROWING REQUEST
NationsBank, N.A., as Administrative Agent
for the Banks referred to below
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attn: Agency Services
[Date]
Ladies and Gentlemen:
The undersigned, Ethyl Corporation, a Virginia corporation (the
"Company"), refers to the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 26, 1997 (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Company, the
Banks party thereto and NationsBank, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Company hereby gives you
notice pursuant to Section 2.04 of the Credit Agreement that it requests a
Committed Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Committed Borrowing is requested to be made:
(A) Date of Committed Borrowing
(which is a Business Day)
(B) Principal Amount of
Committed Borrowing $
(C) Interest rate basis
(D) Interest Period and the
last day thereof
Upon acceptance of any or all of the Loans made by the Banks in
response to this request, the Company shall be deemed to have represented and
warranted (but only to the extent required by Section 4.01 of the Credit
Agreement) that the conditions to lending specified in Section 4.01(b) and (c)
of the Credit Agreement have been satisfied.
Very truly yours,
ETHYL CORPORATION,
By
Title: [Responsible Officer]
Copy to:
NationsBank, N.A.
0000 Xxxx Xxxx Xxxxxx
0xx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxx
------------------
Not less than $10,000,000 and in integral multiples of $1,000,000.
Eurodollar Loan or ABR Loan.
Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
EXHIBIT B-1
FORM OF COMPETITIVE NOTE
$600,000,000 Richmond, Virginia
August 26, 1997
FOR VALUE RECEIVED, the undersigned, ETHYL CORPORATION, a Virginia
corporation (the "Company"), hereby promises to pay to the order of
_________________ (the "Bank"), at the office of NationsBank, N.A. (the
"Agent"), at 000 X. Xxxxx Xxxxxx, 15th Floor, NC1-001-15-02, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attn: Agency Services, (i) on the last day of each Interest
Period as defined in the Competitive Advance and Revolving Credit Facility
Agreement dated as of August 26, 1997, among the Company, the Banks party
thereto, and the Agent (as amended, modified, extended or restated from time to
time, the "Credit Agreement"), the aggregate unpaid principal amount of all
Competitive Loans made by the Bank to the Company pursuant to Section 2.03 of
the Credit Agreement to which such Interest Period applies and (ii) on the
Maturity Date (as defined in the Credit Agreement), the lesser of the principal
sum of Six Hundred Million Dollars ($600,000,000) and the aggregate unpaid
principal amount of all Competitive Loans made by the Bank to the Company
pursuant to Section 2.03 of the Credit Agreement, in lawful money of the United
States of America in immediately available funds, and to pay interest from the
date hereof on such principal amount from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on the dates
determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate or rates determined as set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Competitive Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not in any manner
affect the obligations of the Company to make payments of principal and interest
in accordance with the terms of this Competitive Note and the Credit Agreement.
This Competitive Note is one of the Competitive Notes referred to in
the Credit Agreement which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
prepayment of the principal hereof prior to the maturity thereof under certain
circumstances and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. This
Competitive Note shall be construed in accordance with and governed by the laws
of the Commonwealth of Virginia and any applicable laws of the United States of
America.
ETHYL CORPORATION,
By
Name:
Title:
Loans and Payments
Unpaid Name of
Payments Principal Person
Amount of Type of Interest Balance Making
Date of Loan Loan Period Principal Interest of Note Notation
---- ------- ---- ------ --------- -------- ------- --------
EXHIBIT B-2
FORM OF REVOLVING NOTE
$[_______________] Richmond, Virginia
August 26, 1997
FOR VALUE RECEIVED, the undersigned, ETHYL CORPORATION, a Virginia
corporation (the "Company"), hereby promises to pay to the order of (the
"Bank"), at the office of NationsBank, N.A. (the "Agent"), at 000 X. Xxxxx
Xxxxxx, 15th Floor, NC1-001-15-02, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Agency Services, on (i) the last day of each Interest Period as defined in the
Competitive Advance and Revolving Credit Facility Agreement dated as of August
26, 1997, among the Company, the Banks party thereto, and the Agent (as
amended, modified, extended or restated from time to time, the "
Credit Agreement"), the aggregate unpaid principal amount of all Revolving Loans
made by the Bank to the Company pursuant to Sections 2.02 and 2.04 of the Credit
Agreement to which such Interest Period applies and (ii) the Maturity Date, the
lesser of the principal sum of [__________] Dollars ($[_____]) and the aggregate
unpaid principal amount of all Revolving Loans made by the Bank to the Company
pursuant to Sections 2.02 and 2.04 of the Credit Agreement, in lawful money of
the United States of America in immediately available funds, and to pay interest
from the date hereof on such principal amount from time to time outstanding, in
like funds, at said office, at a rate or rates per annum and payable on the
dates determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates determined as set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Revolving Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not in any manner
affect the obligations of the Company to make payments of principal and interest
in accordance with the terms of this Revolving Note and the Credit Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
prepayment of the principal hereof prior to the maturity thereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Revolving Note shall be construed
in accordance with and governed by the laws of the Commonwealth of Virginia and
any applicable laws of the United States of America.
ETHYL CORPORATION,
By
Name:
Title:
Loans and Payments
Unpaid Name of
Payments Principal Person
Amount of Type of Interest Balance Making
Date of Loan Loan Period Principal Interest of Note Notation
---- ------- ---- ------ --------- -------- ------- --------
EXHIBIT B-3
FORM OF TERM NOTE
$[_______________] Richmond, Virginia
August 26, 1997
FOR VALUE RECEIVED, the undersigned, ETHYL CORPORATION, a Virginia
corporation (the "Company"), hereby promises to pay to the order of (the
"Bank"), at the office of NationsBank, N.A. (the "Agent"), at 000 X. Xxxxx
Xxxxxx, 15th Floor, NC1-001-15-02, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Agency Services, the principal amount of ___________ Dollars ($__________)on
(i) the last day of each Interest Period as defined in the Competitive Advance
and Revolving Credit Facility Agreement dated as of August 26, 1997, among the
Company, the Banks party thereto, and the Agent (as amended,
modified, extended or restated from time to time, the "Credit Agreement"), the
aggregate unpaid principal amount of the Term Loan made by the Bank to the
Company pursuant to Section 2.02 of the Credit Agreement to which such Interest
Period applies and (ii) the Bank's pro rata share of principal amortization
payments provided on the Term Loan pursuant to Section 2.07, in lawful money of
the United States of America in immediately available funds, and to pay interest
from the date hereof on such principal amount from time to time outstanding, in
like funds, at said office, at a rate or rates per annum and payable on the
dates determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates determined as set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Term Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not in any manner
affect the obligations of the Company to make payments of principal and interest
in accordance with the terms of this Term Note and the Credit Agreement.
This Term Note is one of the Term Notes referred to in the Credit
Agreement which, among other things, contains provisions for the acceleration of
the maturity hereof upon the happening of certain events, for prepayment of the
principal hereof prior to the maturity thereof and for the amendment or waiver
of certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified. This Term Note shall be construed in accordance with and
governed by the laws of the Commonwealth of Virginia and any applicable laws of
the United States of America.
ETHYL CORPORATION,
By
Name:
Title:
Loans and Payments
Unpaid Name of
Payments Principal Person
Amount of Type of Interest Balance Making
Date of Loan Loan Period Principal Interest of Note Notation
---- ------- ---- ------ --------- -------- ------- --------
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Competitive Advance and Revolving Credit
Facility Agreement dated as of August 26, 1997, (as amended, modified, extended
or restated from time to time, the "Credit Agreement"), among Ethyl Corporation,
a Virginia corporation (the "Company"), the Banks party thereto (the "Banks"),
and NationsBank, N.A., as administrative agent for the Banks (in such capacity,
the "Administrative Agent"). Terms defined in the Credit Agreement are used
herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the effective date set forth on the following
page, the interests set forth on the following page (the " Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the following page in the
Commitment of the Assignor on the effective date and the Loans owing to the
Assignor which are outstanding on the effective date, together with unpaid
interest accrued on the assigned Loans to the effective date and the amount, if
any, set forth on the following page of the Fees accrued to the effective date
for the account of the Assignor. Each of the Assignor and the Assignee hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 9.04(c) of the Credit Agreement, a copy of which
has been received by each such party. From and after the effective date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
Credit Agreement or any other document issued in connection therewith and (ii)
the Assignor shall, to the extent of the interests assigned by this Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) the Notes evidencing the Loans included in the Assigned
Interest, (ii) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Assignee's exemption from withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate reduced by an applicable tax treaty,
all duly completed and executed by such Assignee, (iii) if the Assignee is not
already a Bank under the Credit Agreement, an Administrative Questionnaire and
(iv) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned
of Facility and Commitment
(set forth, to at least 8 decimals,
Principal Amount Assigned (and as a percentage of the Facility
Identifying Information as to and the aggregate Commitments
Facility individual Competitive Loans of all Banks thereunder)
-------- ---------------------------- ------------------------
Commitment Assigned: $ %
Committed Loans: $ %
Competitive Loans: $ %
Fees Assigned (if any): $ %
The terms set forth above and
on the preceding page are
hereby agreed to: [Accepted
, as Assignor NATIONSBANK, N.A., as Administrative Agent
By: By:
Name: Name:
Title: Title:
, as Assignee ETHYL CORPORATION,
By: By:
Name: Name:
Title: Title:
EXHIBIT D
ADMINISTRATIVE QUESTIONNAIRE
ETHYL CORPORATION
Please accurately complete the following information and return via FAX to
the attention of Xxxxxxx Xxxx at NationsBank Agency Services as soon as
possible.
FAX Number: 000-000-0000
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC RATE LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Backup Credit Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
TAX WITHHOLDING:
UNITED STATES
Non-Resident Alien or Foreign Corporation or Other Foreign Entity
YES NO
If yes, please enclose Form 4224, 1001 or W-8. If no, please enclose
Form W-9.
Tax ID Number
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Telex & Answer Back:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
BID LOAN NOTIFICATIONS:
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
Fax Number:
MAILINGS:
Please specify who should receive financial information:
Name:
Street Address:
City, State, Zip Code:
It is very important that all of the above information is accurately filled
in and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call Xxxxxxx Xxxx at 000-000-0000, telecopy 000-000-0000.
EXHIBIT E
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of ________________,
19__, is by and between ______________________, a ___________________ (the
"Applicant Guarantor"), and NATIONSBANK, N.A., in its capacity as Administrative
Agent under that certain Credit Agreement dated as of August 26, 1997 (as
amended and modified, the "Credit Agreement") by and among ETHYL CORPORATION, a
Virginia corporation, and the Banks identified therein and NationsBank, N.A., as
Administrative Agent. All of the defined terms in the Credit Agreement are
incorporated herein by reference.
The Applicant Guarantor has indicated its desire to become a Guarantor
or is required by the terms of Section 5.08 of the Credit Agreement to become, a
Guarantor under the Subsidiary Guaranty.
Accordingly, the Applicant Guarantor hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Applicant Guarantor hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Applicant Guarantor will be deemed
to be a party to the Subsidiary Guarantor and a "Guarantor" for all purposes
under the Subsidiary Guaranty, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Subsidiary Guarantor. The
Applicant Guarantor agrees to be bound by, all of the terms, provisions and
conditions contained in the Subsidiary Guaranty, including without limitation
all of the undertakings and waivers set forth therein.
Without limiting the generality of the foregoing terms of this paragraph 1, the
Applicant Guarantor hereby (A) jointly and severally together with the other
Guarantors, guarantees to each Bank and the Administrative Agent as provided in
the Subsidiary Guaranty, the prompt payment and performance of the Guaranteed
Obligations in the Subsidiary Guaranty in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof,
and (B) agrees that if any of the Guaranteed Obligations are not paid or
performed in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise), the Applicant Guarantor will, jointly
and severally together with the other Guarantors, promptly pay and perform the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration or otherwise) in accordance with the
terms of such extension or renewal.
2. The Applicant Guarantor acknowledges and confirms that it has
received a copy of the Subsidiary Guaranty, the Credit Agreement and the
Schedules and Exhibits thereto.
3. The Applicant Guarantor hereby waives acceptance by the
Administrative Agent and the Lenders of the guaranty by the Applicant Guarantor
under Section 4 of the Credit Agreement upon the execution of this Joinder
Agreement by the Applicant Guarantor.
4. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
5. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the Applicant Guarantor has caused this Joinder
Agreement to be duly executed by its authorized officers, and the Administrative
Agent, for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
APPLICANT GUARANTOR
By:_______________________________
Name:
Title:
Address for Notices:
Attn:______________________________
Telephone:
Telecopy:
Acknowledged and accepted:
NATIONSBANK, N.A., as Administrative Agent
By:_______________________________
Name:
