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Exhibit (b)(1)
364-DAY REVOLVING CREDIT AGREEMENT
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This Agreement is made and entered into this 31st day of August, 1995
by and among The Xxxxxxx-Xxxxxxxx Company ("Company") whose principal place
of business is located at 000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx, Xxxx
00000, Bank of America National Trust and Savings Association, as
Administrative Agent, and the financial institutions listed on Schedule A
hereto together with each of their successors and assigns (collectively
referred to as "Banks" and individually a "Bank").
W I T N E S S E T H:
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WHEREAS, the Company has requested the Banks to make certain unsecured
Loans to the Company for general corporate purposes including, but not
limited to, capital expenditures, general working capital, acquisitions of
assets, stock or other ownership interests and repurchases or redemptions
of securities; and
WHEREAS, the Banks have agreed to make such Loans (as such term is
defined herein) on the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADMINISTRATIVE AGENT" shall mean Bank of America National Trust and Savings
Association or any successor Bank appointed by the Company and
approved by the holders of fifty-one percent (51%) by amount of the
Commitments.
"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of interest in
effect for any given day as publicly announced from time to time by the
Administrative Agent as its "reference rate" and (ii) the Federal Funds
Rate plus 50 basis points. Any change by the Administrative Agent of
its "reference rate" shall take effect at the opening of business on the
day specified in the public announcement of such change.
"ALTERNATE BASE RATE LOAN" shall mean those Loans bearing interest at the
Alternate Base Rate.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which
California and New York banks are open for the transaction of business.
"COMMITMENT" shall mean the obligation of each Bank to make Loans, under
Section 2.1A of this Agreement, up to the amount set opposite the name
of such Bank as set forth on such Bank's signature page hereto (or such
lesser amount as shall be determined pursuant to Section 2.5 hereof).
"COMMITMENT PERIOD" shall mean the period which commences on the Effective
Date and terminates on the Termination Date.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of the Company and its Consolidated Subsidiaries over all of
their liabilities (other than Subordinated Indebtedness), as determined
on a consolidated basis in accordance with
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generally accepted accounting principles as applied by the Company in
the calculation of such amount in the Company's then most recent
financial statements furnished to its stockholders, plus the aggregate
value of all treasury stock purchased after the Effective Date (at
cost) by the Company (to the extent that the aggregate value of such
treasury stock for purposes of this calculation does not exceed Two
Hundred Fifty Million Dollars ($250,000,000)). The calculation of
Consolidated Net Worth shall exclude any amounts which would otherwise
be required to be included therein as a result of the future adoption
by the Financial Accounting Standards Board of any policy, statement,
rule or regulation requiring the Company to record an accumulative
liability on its Financial Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every
Subsidiary which is consolidated in the Company's financial statements
contained in its then most recent Financial Report.
"DEBT" shall mean, collectively, all indebtedness at any one time
outstanding hereunder and owed by the Company to the Banks pursuant to
this Agreement and includes the principal of and interest on all Notes
and each conversion, extension, renewal or refinancing thereof in whole
or in part, the Facility Fees and any prepayment premium due under
Section 2.1A(x). "DOLLARS" or "$" shall mean any lawful currency of
the United States of America.
"EUROCURRENCY" shall mean any freely transferrable and convertible currency
on deposit outside the country of issuance.
"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"EFFECTIVE DATE" shall mean August 31, 1995.
"FACILITY FEE" shall mean the sum to be paid by the Company to the
Administrative Agent on behalf of each Bank on the last Banking Day of
each calendar quarter during the Commitment Period calculated as the
product of each Bank's Commitment and the number of basis points set
forth in the following table for the highest of the then current
ratings assigned to the Company's senior unsecured long-term debt by
Xxxxx'x, S&P or Duff & Xxxxxx on such date which is one (1) business
day prior to the date(s) payment of such fee shall be due:
XXXXX'X, S&P OR DUFF & XXXXXX BASIS POINTS
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AA-, Aa3 or higher 5.0
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A-, A3 6.0
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BBB, Baa2 9.0
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Lower than BBB or Baa2 12.0
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Banking
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Banking
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Day, the rate for such day shall be the arithmetic mean, as determined
by the Administrative Agent, of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York time) on
such day by each of three leading brokers of Federal funds transactions
in New York City selected by the Administrative Agent.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as
otherwise indicated therein, filed by the Company with the Securities
and Exchange Commission (or any governmental body or agency succeeding
to the functions of such Commission) on Form 10-K or 10-Q pursuant to
the Securities Exchange Act of 1934 ("Exchange Act"), as then in effect
(or any comparable forms under similar Federal statutes then in force),
and the most recent financial statements furnished by the Company to
its stockholders (which annual financial statement shall be certified
by the Company's independent certified public accountants).
"INTEREST ADJUSTMENT DATE" shall mean the last day of each LIBOR Interest
Period.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16 of 1%) of
the per annum rates at which deposits in immediately available funds in
Dollars for the number of months in the relevant LIBOR Interest Period
and in the amount of the LIBOR Loan to be disbursed or to remain
outstanding during such LIBOR Interest Period, as the case may be, are
offered to the Administrative Agent by the Reference Banks in the
London Interbank Eurodollar market, determined as of 11:00 a.m. London
time, two (2) London Banking Days prior to the beginning of the
relevant LIBOR Interest Period pertaining to a LIBOR Loan hereunder, as
appropriately adjusted by dividing such average LIBOR rate by 1.00
minus the applicable Reserve Percentage then in effect.
"LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six or, if
available to the Banks, twelve months (as selected by the Company)
commencing on the applicable borrowing date of each LIBOR Loan
hereunder; provided, however, that if any such period would be affected
by a reduction in Commitment as provided in Section 2.5 hereof,
prepayment as provided in Section 3.5 hereof or maturity of a LIBOR
Loan as provided in Section 2.1A hereof, such period shall end as
provided in such relevant Section provided further that no such LIBOR
Interest Period shall end after the Termination Date.
"LIBOR LOAN" shall mean a Loan bearing interest at LIBOR.
"LOAN" shall mean the indebtedness of the Company with respect to each
advance of funds by a Bank hereunder.
"LONDON BANKING DAY" shall mean a day, other than a Saturday or Sunday, on
which banks are open for business in London, England and San Francisco,
California, quoting deposit rates for Dollar deposits.
"MAJORITY BANKS" shall mean Banks with an aggregate of sixty-six and
two-thirds percent (66 2/3%) or more of the Commitments on the relevant
date.
"MARGIN" shall mean the number of basis points set forth in the following
table for the highest of the then current ratings assigned to the
Company's senior unsecured long-term debt by Xxxxx'x, S&P or Duff &
Xxxxxx:
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XXXXX'X, S&P OR DUFF & XXXXXX BASIS POINTS
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AA-, Aa3 or higher 15.0
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A-, A3 17.0
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BBB, Baa2 21.0
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Lower than BBB or Baa2 26.0
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of the
Company's Consolidated Net Worth.
"MONEY MARKET NOTE" shall mean a Note or Notes executed and delivered
pursuant to Section 2.1B hereof.
"MONEY MARKET RATE" shall mean, with respect to any period of days selected
by the Company commencing on the applicable borrowing date for a Money
Market Rate Loan, the rate of interest per annum quoted by any Bank to
the Company for such Money Market Rate Loans.
"MONEY MARKET RATE LOAN" shall mean a Loan with an interest rate equal to
the Money Market Rate and as otherwise defined in Section 2.1B hereof.
"NOTE" or "NOTES" shall mean a note or notes executed and delivered
pursuant to Section 2.1A or 2.1B hereof.
"OUTSTANDING MAJORITY BANKS" shall mean Banks with an aggregate of sixty-six
and two-thirds percent (66 2/3%) or more of the principal amount of
Loans hereunder on the relevant date.
"PERCENTAGE" shall mean, as to any Bank (as set forth on the Bank's
signature page hereof), the percentage of such Bank's share of the total
Commitments of all Banks; provided that if the Commitments are
terminated or reduced pursuant to Section 2.5 hereof, then "Percentage"
shall mean the percentage of such Bank's share of the total Commitments
of all Banks immediately after the termination or reduction of
Commitments.
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended from time to time ("ERISA") sponsored and maintained by the
Company, any Consolidated Subsidiary, or of any member of a controlled
group of corporations, as the term "controlled group of corporations"
is defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Company or any Consolidated Subsidiary is a
part, for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to the
Company which constitutes, or which with the lapse of any applicable
grace period or the giving of notice or both would constitute, any
Event of Default and which has not been appropriately waived by the
Banks in writing or fully corrected prior to becoming an Event of
Default.
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"REFERENCE BANKS" shall mean Trust Company Bank and The Bank of Nova Scotia
or any successor Bank(s) appointed by the Company, and satisfactory to
the holders of fifty-one percent (51%) by amount of the Commitments,
at any time, upon thirty (30) days prior written notice to the Banks,
to act as Reference Banks pursuant to the terms of this Agreement.
"REGULATORY CHANGE" shall mean, as to any Bank, any change in United States
federal, state or foreign laws or regulations or the adoption or
making of any interpretations, directives, guidelines or requests of
or under any United States federal, state or foreign laws or
regulations enacted after the Effective Date (whether or not having
the force of law) by any court or governmental authority charged with
the interpretation or administration thereof.
"RELATED WRITING" shall mean any assignment, mortgage, security agreement,
subordination agreement, financial statement, audit report or other
writing furnished by the Company or any of its officers to the Banks
pursuant to or otherwise in connection with this Agreement.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the
Secretary of Labor under Section 110 of ERISA.
"RESERVE PERCENTAGE" shall mean, for any day, that percentage (expressed as
a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement (including but not limited to any
margin reserve requirement and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) which
is imposed on (a) commercial time deposits having an original maturity
of one (1) year or less and which is applicable to the class of banks
of which the Administrative Agent is a member; or (b) a Bank with
respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits, as the case may be.
"REVOLVING CREDIT LOAN" shall mean a Loan evidenced by a Revolving Credit
Note.
"REVOLVING CREDIT NOTE" shall mean a Note evidencing a Loan described in
Section 2.1A.
"SUBORDINATED INDEBTEDNESS" shall mean an indebtedness which has been
subordinated (by written terms or agreement being in form and substance
reasonably satisfactory to the holders of fifty-one percent (51%) by
amount, of the Commitments) in favor of the prior payment in full of
the Company's Debt to the Banks.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority
of the outstanding capital stock or voting power, or both, of which is
(or upon the exercise of all outstanding warrants, options and other
rights would be) owned at the time in question by the Company or by
another such corporation(s) or by any combination of the Company and
such corporation(s).
"TERMINATION DATE" shall mean 12:01 a.m. on such date which is three hundred
sixty-four (364) days from the Effective Date; provided, however, the
Company may within ninety (90) days prior to the Termination Date, by
notice to the Administrative Agent, make written requests to the Banks
to extend the scheduled Termination Date for an additional period
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of three hundred sixty-four (364) days. The Administrative Agent shall
give prompt written notice to each Bank of the receipt of such request.
Each Bank shall make a determination not more than sixty (60) nor less
than fifty-five (55) days prior to the Termination Date whether it will
extend the Termination Date as requested; provided, however, the
failure by any Bank to make a timely response to the Company's request
for an extension shall be deemed to constitute a refusal by such Bank
to extend the Termination Date. If, in response to a request for an
extension of the Termination Date one or more Banks fail to agree to
the requested extension ("Disapproving Banks"), then the Company may
elect to either (a) continue this Agreement at the same level of
Commitments by replacing each of the Disapproving Banks in accordance
with Section 2.5, or (b) provided the requested extension is approved
by at least fifty-one percent (51%) of the Banks with Commitments
hereunder (including for purposes hereof any replacement Bank(s) which
may replace a Disapproving Bank ("Approving Banks")), extend and
continue this Agreement at a lower aggregate amount equal to the
Commitments held by the Approving Banks. In any such case, (i) the
Termination Date relating to the Commitments held by the Disapproving
Banks shall remain as then in effect with repayment of any Notes held
by such Disapproving Banks being due on their due date and the
termination of their respective Commitments on the Termination Date,
and (ii) the Termination Date relating to the Commitments held by the
Approving Banks shall be extended by an additional period of three
hundred sixty-four (364) days.
"VOTING STOCK" shall mean stock of a corporation of a class or classes
having general voting power under ordinary circumstances to elect a
majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not the stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated
Subsidiary all of whose outstanding stock, other than directors'
qualifying shares, shall at the time be owned by the Company and/or by
one or more Wholly-Owned Consolidated Subsidiaries.
Any accounting term not specifically defined in this Article shall have the
meaning ascribed thereto by generally accepted accounting principles in
effect as of the date of the Company's then most recent Financial Reports
unless otherwise indicated.
The foregoing definitions shall be applicable to the singular and plural of
the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms and
conditions of this Agreement each Bank will participate to the extent
hereinafter provided in making Loans to the Company in such aggregate
amounts as the Company shall request; provided, however, that in no event
shall the aggregate principal amount of all Loans outstanding under this
Agreement during the Commitment Period be in excess of One Hundred Million
Dollars ($100,000,000).
A. REVOLVING CREDIT LOANS
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(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the terms
and conditions of this Agreement, during the Commitment Period
each Bank will make a Loan or Loans to the Company, pursuant
to this Section 2.1A, in such amount
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or amounts as the Company may request from time to time but
not exceeding in aggregate principal amount, at any one time
outstanding hereunder, the Commitment of such Bank. Subject
to the provisions of this Agreement, the Company shall be
entitled under this Paragraph A to borrow funds, repay the
same in whole or in part, and reborrow hereunder at any time
and from time to time during the Commitment Period. Each Loan
made under this Paragraph A shall be made pro rata according
to each Bank's respective Commitments.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1A up to the total of all the Commitments by
means of any combination of:
(a) Alternate Base Rate Loans which shall be payable on
its due date and shall be drawn down in aggregate
amounts of not less than Five Million Dollars
($5,000,000) or any greater amount evenly divisible by
One Million Dollars ($1,000,000); and
(b) LIBOR Loans, which shall be payable on the last day of
the relevant LIBOR Interest Period and shall be drawn
down in aggregate amounts of not less than Five
Million Dollars ($5,000,000) or any greater amount
evenly divisible by One Million Dollars ($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing under
this Section 2.1A shall be as follows:
(a) Each such borrowing shall be made upon the Company's
written notice ("Notice") to the Administrative Agent
(which Notice must be received by the Administrative
Agent prior to 11:00 a.m. New York time three (3)
London Banking Days prior to the requested borrowing
date in the event of a LIBOR Loan and by 11:00 a.m.
New York time on the same Banking Day of the proposed
date of such borrowing in the event of an Alternate
Base Rate Loan). The Notice shall specify:
(1) the amount of the borrowing;
(2) the requested borrowing date which shall be a
Banking Day;
(3) the type of Loan(s) comprising the borrowing;
and
(4) the duration of the LIBOR Interest Period for
any LIBOR Loan(s) and the maturity date of any
Alternate Base Rate Loan(s).
(b) The Administrative Agent shall promptly notify each
Bank of (i) its receipt of a Notice of borrowing, (ii)
the amount of each Bank's pro-rata share of such
borrowing; and (iii) the name of the Company's bank,
the Company's account number and American Banking
Association routing number of the bank at which the
Company's account is maintained and to which such
pro-rata shares shall be routed.
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(c) Each Bank's pro-rata share of each Revolving Credit
Loan shall be delivered by each such Bank to the
Company not later than 3:00 p.m. New York time on the
last day of the notice period set forth herein, time
being of the essence, in immediately available Dollars
by wire transfer to an account of the Company
designated by the Company, from time to time in
writing to the Administrative Agent, with the account
number and American Banking Association routing number
of the bank at which such account is maintained.
(iv) INTEREST RATES: The Company shall pay interest on Revolving
Credit Loans:
(a) at the Alternate Base Rate on the unpaid principal
amount of Alternate Base Rate Loans outstanding from
time to time from the date of receipt of funds by the
Company until paid, payable on the last business day
of each calendar quarter and on the maturity date,
computed on the basis of a 365 or 366 day year as the
case may be; and
(b) at LIBOR plus the applicable Margin (converted to
percentage points) on the unpaid principal amount of
LIBOR Loans outstanding from time to time from the
date on which funds are received by the Company until
paid, payable (a) on the last day of the LIBOR
Interest Period (computed on the basis of a year
having 360 days calculated on the basis of the actual
number of days elapsed) or (b) every three (3) months
or ninety (90) days in the event any such LIBOR
Interest Period exceeds three (3) months or ninety
(90) days.
(v) PAYMENTS ON REVOLVING CREDIT NOTES, ETC.: All payments of
principal and interest shall be made to the Administrative
Agent in immediately available funds for the account of the
Banks by no later than 3:00 p.m. (New York time) on the
applicable payment date. The Administrative Agent shall
promptly distribute to each Bank its ratable share of the
principal and interest received by it for the account of such
Bank. Each Bank shall endorse each Revolving Credit Note held
by it or otherwise make appropriate book entries evidencing
each payment of principal made thereon, it being understood,
however, that any Bank's failure to record appropriate
information on the grid(s) attached to any such Note shall in
no way affect the obligation of the Company under this
Agreement or under any such Note. Whenever any payment to be
made hereunder, including without limitation, any payment to
be made on any Note, shall be stated to be due on a day which
is not a Banking Day, such payment may be made on the next
Banking Day (but in any event not later than its maturity
date) and such extension of time shall in each case be
included in the computation of the interest payable on such
Note. Notwithstanding the previous sentence, in the case of
any LIBOR Loan, if the next Banking Day is in a month other
than the month the payment was originally due, such payment
may be made on the immediately preceding Banking Day and such
reduction of time shall in each case be considered in the
computation of the interest payable on such Note.
(vi) REVOLVING CREDIT NOTES: The obligation of the Company to
repay the Alternate Base Rate Loans and the LIBOR Loans made
by each Bank and to pay interest thereon shall be evidenced by
non-negotiable Revolving Credit Notes of the Company
substantially in the form of Schedule B hereto, with
appropriate
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insertions, dated the date of execution thereof by the Company
and payable to the order of such Bank on the maturity date of
such Loan, in the principal amount indicated thereon. The
principal amount of the Alternate Base Rate Loans and the
LIBOR Loans made by each Bank under this Section 2.1A and all
prepayments thereof and the applicable dates with respect
thereto shall be recorded by such Bank from time to time on
the grid(s) attached to such Note or by appropriate book
entry. The aggregate unpaid amount of Alternate Base Rate
Loans and LIBOR Loans set forth on the grid(s) attached to
each Revolving Credit Note shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such
Note, it being understood, however, that any Bank's failure to
so record appropriate information on the grid(s) attached to
its respective Revolving Credit Note shall in no way affect
the obligations of the Company under this Agreement or such
Note.
(vii) INTEREST ON LATE PAYMENTS: If any Revolving Credit Note shall
not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision or
acceleration of maturity therein contained, the principal
thereof and the accrued and unpaid interest thereon shall bear
interest, until paid, at a rate per annum which shall be 1.1
times the Alternate Base Rate from time to time in effect.
(viii) LOAN REFINANCINGS: If any Revolving Credit Loan is not repaid
when due, unless otherwise directed by the Company, and
provided no Event of Default exists hereunder, the Banks shall
refinance LIBOR Loans with successive LIBOR Loans commencing
on the date immediately following the maturity date (unless
otherwise agreed to by the Company and the Banks) of such
prior Loan and with the same number of months for such Loan's
LIBOR Interest Period unless otherwise provided in this
Agreement. Such automatic Loans shall be deemed to have
repaid the principal in full of each prior Loan such that
no Event of Default would exist.
(ix) CONVERSION: At the Company's option, the Company may at any
time or from time to time, except if an Event of Default
exists, convert a LIBOR Loan or an Alternate Base Rate Loan to
any one of the other types of Loan. Such conversion shall not
be deemed to be a prepayment. The provisions of this
subsection shall apply with respect to voluntary conversions
or conversions required hereunder. The Company, through the
Administrative Agent, shall give written or telephonic notice
to the Banks of each conversion by 11:00 a.m., New York time
(a) on the date of such conversion if such conversion is
comprised of Alternate Base Rate Loans, and (b) at least two
(2) Banking Days prior to the date of such conversion if such
conversion is comprised of LIBOR Loans. Each such notice
shall be effective upon receipt by the relevant Bank and shall
specify the date and amount of such conversion, the type of
Loans to be converted and the type of Loans to be converted
into. Each conversion shall be in an aggregate amount of not
less than Five Million Dollars ($5,000,000) or any greater
amount evenly divisible by One Million Dollars ($1,000,000).
(x) PREPAYMENT.
(a) As to Alternate Base Rate Loans, the Company shall
have the right at any time or from time to time, upon
one (1) Banking Days' prior written notice to the
Administrative Agent, without the payment of any
premium or
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penalty to prepay on a pro rata basis, all or any part
of the principal amount of the Notes then outstanding
as designated by the Company plus interest accrued on
the amount so prepaid to the date of such prepayment.
(b) As to LIBOR Loans, the Company shall have the right at
any time or from time to time, upon four (4) London
Banking Days' prior written notice to the
Administrative Agent, to prepay on a pro rata basis,
all or any part of the principal amount of the Notes
then outstanding as designated by the Company, plus
interest accrued on the amount so prepaid to the date
of such prepayment. If LIBOR, as determined as of
11:00 a.m. London time two (2) London Banking Days
prior to the date of prepayment (hereinafter
"Prepayment LIBOR"), shall be lower than the last
LIBOR previously determined for the LIBOR Loan(s),
with respect to which prepayment is intended to be
made (hereinafter "Last LIBOR"), then the Company
shall promptly pay each of the Banks, in immediately
available funds, a prepayment premium measured by a
rate (the "Prepayment Premium Rate") which shall be
equal to the difference between the Last LIBOR and the
Prepayment LIBOR. In determining the Prepayment
LIBOR, the Company shall apply a rate equal to LIBOR
(for a deposit approximately equal to the amount of
such prepayment) which would be applicable to a LIBOR
Interest Period commencing on the date of such
prepayment and having a duration equal to the LIBOR
Interest Period described in Article I hereof with a
length closest to the remaining duration of the actual
LIBOR Interest Period during which such prepayment is
to be made. The Prepayment Premium Rate shall be
applied to all or such part of the principal amount of
the Notes as related to the LIBOR Loans to be prepaid,
and the prepayment premium shall be computed for the
period commencing with the date on which said
prepayment is to be made to that date which coincides
with the last day of the LIBOR Interest Period
previously established when the LIBOR Loans, which are
to be prepaid, were made. Each prepayment of a LIBOR
Loan shall be in the aggregate principal sum of not
less than One Million Dollars ($1,000,000). In the
event the Company fails to borrow or convert into a
proposed LIBOR Loan subsequent to the delivery to the
Banks of the notice of the proposed date, aggregate
amount and initial LIBOR Interest Period of such Loan,
but prior to the draw down of funds thereunder, such
failure to borrow or convert shall be treated as a
prepayment subject to such prepayment premium.
Notwithstanding the above, no prepayment premium shall
be due and owing by the Company if the Company makes
such payment on the Interest Adjustment Date
applicable to the Loan being paid.
B. MONEY MARKET RATE LOANS
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(i) BORROWING RESTRICTIONS: Subject to the terms and conditions
of this Agreement, during the Commitment Period each Bank may
make (but is not obligated to make) a Money Market Rate Loan
to the Company in such amount or amounts as the Company may
from time to time request, not exceeding in aggregate
principal amount, at any one time outstanding hereunder, the
sum One Hundred Million Dollars ($100,000,000). Subject to
the provisions of this Agreement, the Company shall be
entitled under this Paragraph B to borrow funds, repay the
same in whole or in part and reborrow hereunder at any time
and from
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time to time from any Bank making Money Market Rate Loans to
the Company. The Administrative Agent shall not be involved,
in its capacity as such agent, in any borrowing(s) by the
Company under this Section 2.1B. The procedures for any such
Loan shall be as agreed upon by the Company and each Bank
making a Loan under this Paragraph B.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1B from any Bank an amount not to exceed the
total of all Commitments in amounts of not less than Five
Million Dollars ($5,000,000) or any greater amount evenly
divisible by One Million Dollars ($1,000,000).
(iii) INTEREST RATES: The Company shall pay interest on the unpaid
principal amount of any Money Market Rate Loan outstanding
from time to time from the date on which funds are received by
the Company until paid, at the Money Market Rate. Except as
may be otherwise agreed by the Company and the Bank making a
Money Market Rate Loan, interest shall be payable at the
maturity of such Loan and shall be computed on the basis of a
365 or 366 day year, as the case may be.
(iv) MONEY MARKET NOTES: The obligation of the Company to repay
Money Market Rate Loans and to pay interest thereon, shall be
evidenced by a Money Market Note substantially in the form of
Schedule C hereto, dated the date of execution thereof by the
Company and payable to the order of such Bank in accordance
with the terms and conditions of such Money Market Note.
(v) PAYMENT: All payments of principal and interest due on Money
Market Rate Loans shall be paid by the Company directly to any
Bank making a Money Market Rate Loan to the Company.
(vi) INTEREST ON LATE PAYMENTS: If any Money Market Note shall not
be paid at maturity, whether such maturity occurs by reason of
lapse of time or by operation of any provision of acceleration
of maturity therein contained, the principal thereof and the
unpaid interest thereon shall bear interest, until paid, at a
rate per annum which shall be 1.1 times the Alternate Base
Rate from time to time in effect.
SECTION 2.2. CONDITIONS TO CERTAIN LOANS OR CONVERSIONS. The obligation of
each Bank to make the Loans described in Section 2.1A hereunder is
conditioned, in the case of each borrowing or conversion hereunder, upon:
(i) the fact that no Possible Default or Event of Default shall
then exist or immediately after the Loan would exist; and
(ii) the fact that the representations and warranties contained in
Article IV hereof shall be true and correct in all material
respects with the same force and effect as if made on and as
of the date of such borrowing or conversion.
Each borrowing or conversion by the Company hereunder shall be deemed to be
a representation and warranty by the Company as of the date of such
borrowing as to the facts specified in Sections 2.2 (i) and (ii) above.
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SECTION 2.3. FACILITY FEE. The Company agrees to pay to each Bank an
annual Facility Fee, for the period from and including the date of this
Agreement to the earlier of (i) the Termination Date or (ii) the
termination of the Commitments pursuant to Section 2.5 hereof. The first
payment of the Facility Fee shall be made no later than October 5, 1995 for
the period August 31, 1995 to September 30, 1995. All payments of the
Facility Fee shall be made to the Administrative Agent in immediately
available funds for the account of the Banks by no later than 3:00 p.m.
(New York time) on the applicable payment date. The Administrative Agent
shall promptly distribute to each Bank its ratable share of the Facility
Fee received by it for the account of such Bank.
SECTION 2.4. COMPUTATION OF FACILITY FEES. Facility Fees shall be computed
for the actual number of days elapsed on the basis of a 360 day year.
SECTION 2.5. TERMINATION OF COMMITMENTS AND RIGHT OF SUBSTITUTION.
(i) The Company may at any time or from time to time terminate in
whole or ratably in part the Commitments of all of the Banks
to an amount not less than the aggregate principal amount of
the Loans then outstanding under this Agreement, by giving the
Banks and the Administrative Agent not less than two (2)
Banking Days' notice of the aggregate amount of such partial
termination (which shall not be less than Five Million Dollars
($5,000,000) or any greater amount evenly divisible by One
Million Dollars ($1,000,000)) and such Bank's proportionate
amount of such partial termination. If the Company terminates
in whole the Commitments of the Banks, on the effective date
of such termination (provided the Company has prepaid in full
the unpaid principal balance, if any, of the Notes outstanding
together with all accrued and unpaid interest, if any,
Facility Fees accrued and unpaid, and any applicable
prepayment premiums) all of the Notes outstanding shall be
delivered to the Company marked "Cancelled". Any partial
termination of the Commitments shall be irrevocable during the
remainder of the Commitment Period.
(ii) The Company may at any time or from time to time terminate or
reduce the Commitment of any Bank hereunder to an amount not
less than the aggregate principal amount of the Loans then
outstanding by such Bank under this Agreement:
(a) immediately if such Bank satisfies any of the
criteria for insolvency described in Section 7.5
hereof; or
(b) upon not less than two (2) Banking Days' notice to
such Bank and the Administrative Agent if the
Company, in its sole discretion, elects to terminate
the Commitment of such Bank for any reason including,
but not limited to, the default of such Bank under
the terms of this Agreement.
(iii) In the event the Commitment of any Bank is terminated by the
Company, the Company shall have the right to replace such Bank
with a successor bank or banks (including any bank or banks
which is a party to this Agreement with the consent of such
bank or banks) with a Commitment not to exceed the Commitment
of the terminated Bank(s); provided that such successor bank
shall, pursuant to a written instrument in form and substance
satisfactory to the Company, effectively agree to become a
party hereto and a "Bank" hereunder and be bound by the terms
hereof.
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(iv) In the event of a default of any Bank under the terms of this
Agreement, the Company's election to terminate the Commitment
of such Bank shall not act as a waiver of any other remedies
which the Company may have for such default.
(v) The termination of the Commitment of any Bank pursuant to
Section 2.5(ii) hereof shall not affect the Commitments or
the obligations of all remaining Banks under this Agreement.
(vi) After any termination or reduction of the Commitments as
described in this Section 2.5, the Facility Fees payable under
Section 2.3 shall be calculated upon the Commitments of the
Banks as so reduced.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS
SECTION 3.1. RESERVES OR DEPOSIT REQUIREMENTS, ETC. If at any time after
the Effective Date any new law, treaty or regulation (including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the published interpretation thereof by any governmental
authority charged with the administration thereof or any central bank or
other fiscal, monetary or other authority shall impose (whether or not
having the force of law), modify or deem applicable any reserve and/or
special deposit requirement (other than reserves: (a) included in the
Reserve Percentage, the effect of which is reflected in the interest
rate(s) of the LIBOR Loan(s) in question or (b) attributable to
requirements imposed by the Board of Governors of the Federal Reserve
System on any Bank as a result of the failure of any such Bank to maintain
necessary current capitalization or financial conditions imposed thereby)
against assets held by, or deposits in or for the account of any Loans by
any Bank, and the result of the foregoing is to increase the cost to such
Bank of making or maintaining LIBOR Loans or reduce the amount of principal
or interest received by such Bank with respect to LIBOR Loans, then upon
demand by such Bank the Company shall pay to such Bank from time to time on
Interest Adjustment Dates with respect to such Loans, as additional
consideration hereunder, additional amounts sufficient to fully compensate
and indemnify such Bank for such increased cost or reduced amount, provided
that such additional cost or reduced amount were allocable to such
LIBOR Loans.
A certificate as to the increased cost or reduced amount (hereinafter in
this Section 3.1 collectively called "Increased Costs") as a result of any
event mentioned in this Section 3.1, setting forth the calculations
therefor, shall be promptly submitted by such Bank to the Company for its
review. The Company shall pay such Increased Costs for such period of time
prior to the date such certificate is received by the Company during which
such Regulatory Change, by its terms, applies retroactively to any period
of time prior to the date such Regulatory Change became effective. In
addition, the Company shall pay such Increased Costs incurred by a Bank on
and after the date such certificate is received by the Company unless the
Company, notwithstanding any other provision of this Agreement, promptly,
(i) upon at least three (3) Banking Days' prior written notice to
such Bank, prepays the affected LIBOR Loans in full or
converts all LIBOR Loans to Alternate Base Rate Loans
regardless of the interest period thereof, or
(ii) terminates the Commitment of such Bank pursuant to Section 2.5
hereof (provided that the Company shall pay such Increased
Costs on any LIBOR Loans from such Bank which remain
outstanding).
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Each Bank will notify the Company as promptly as practicable of the
existence of any event which will likely require the payment by the Company
of any such additional amount under this Section.
SECTION 3.2. CHANGES IN TAX LAWS. In the event that by reason of any new
law, regulation or requirement or any change in any existing law,
regulation or requirement or in the interpretation thereof by an official
authority, or the imposition of any requirement of any central bank whether
or not having the force of law, (i) any Bank shall, with respect to this
Agreement or any transaction under this Agreement, be subject to any tax,
levy, impost, charge, fee, duty, deduction or withholding of any kind
whatsoever (other than any tax imposed upon the total net income of such
Bank or imposed on or calculated with respect to the value of the assets of
such Bank) or (ii) any change shall occur in the taxation of any Bank with
respect to any LIBOR Loan and the interest payable thereon (other than any
change which affects, and to the extent that it affects, the taxation of
the total net income of such Bank or imposed on or calculated with respect
to the value of the assets of such Bank), and if any such measures or any
other similar measure shall result in an increase in the cost to such Bank
of making or maintaining any LIBOR Loan or in a reduction in the amount of
principal, interest or Facility Fee receivable by such Bank in respect
thereof, then such Bank shall promptly notify the Company stating the
reasons therefor.
A certificate as to any such increased cost or reduced amount (hereinafter
in this Section 3.2 collectively called "Increased Costs") as a result of
any event mentioned in this Section 3.2, setting forth the calculations
therefor, shall be submitted by such Bank to the Company for its review.
The Company shall pay such Increased Costs for such period of time prior to
the date such certificate is received by the Company during which such
Regulatory Change, by its terms, applies retroactively to any period of
time prior to the date such Regulatory Change became effective. In
addition, the Company shall pay such Increased Costs incurred by such Bank
on and after the date such certificate is received by the Company unless
the Company, notwithstanding any other provision of this Agreement,
promptly,
(i) upon at least three (3) Banking Days' prior written notice to
such Bank and the Administrative Agent, prepays the affected
LIBOR Loans in full or converts all LIBOR Loans to Alternate
Base Rate Loans regardless of the interest period thereof, or
(ii) terminates the Commitment of such Bank pursuant to Section 2.5
hereof (provided that the Company shall pay such Increased
Costs on any LIBOR Loans from such Bank which remain
outstanding).
If any Bank receives such additional consideration from the Company
pursuant to this Section 3.2 and thereafter obtains the benefits of any
refund, deduction or credit for any taxes or other amounts on account of
which such additional consideration has been paid, such Bank shall pay to
the Company its allocable share thereof and shall reimburse the Company to
the extent, but only to the extent, that such Bank shall have actually
received a refund of such taxes or other amounts together with any interest
thereon or an effective net reduction in taxes or other governmental
charges (including any taxes imposed on or measured by the total net income
of such Bank) of the United States or any state or subdivision thereof by
virtue of any such deduction or credit, after first giving effect to all
other deductions and credits otherwise available to such Bank. If, at the
time any audit of such Bank's income tax return by any taxing agency is
completed, such Bank determines, based on such audit, that it was not
entitled to the full amount of any refund reimbursed to the Company as
aforesaid or that its net income taxes are not reduced by a credit or
deduction for the full amount of taxes reimbursed to the Company as
aforesaid, the Company, upon demand of such Bank, will promptly pay to such
Bank the amount so refunded to which such
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Bank was not so entitled, or the amount by which the net income taxes of
such Bank were not so reduced, as the case may be. The provisions of this
Section 3.2 shall survive the termination of this Agreement.
SECTION 3.3. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE
UNASCERTAINABLE. In the event the Majority Banks shall have determined, in
good faith and reasonably, that Dollar deposits of the relevant amount for
the relevant LIBOR Interest Period for LIBOR Loans are not available to the
Banks in the London Interbank Eurodollar market or that, by reason of
circumstances affecting such market, adequate and reasonable means do not
exist for ascertaining LIBOR applicable to such determination to the
Company then (i) any notice of new LIBOR Loans (or conversion of existing
Loans to LIBOR Loans) previously given by the Company and not yet borrowed
(or converted, as the case may be) shall be deemed a notice to make
Alternate Base Rate Loans unless the Company notifies the Administrative
Agent to the contrary, and (ii) the Company shall be obligated either to
prepay or to convert any outstanding LIBOR Loans on the last day of the
then current LIBOR Interest Period or Periods with respect thereto.
SECTION 3.4. INDEMNITY. Without limitation of any other provisions of this
Article III, the Company hereby agrees to indemnify the Administrative
Agent and each Bank against any loss or expense (excluding consequential,
incidental or special damages) which the Administrative Agent or such Bank
may sustain or incur as a direct result of any default by the Company in
the payment when due of any amount due hereunder with respect to any LIBOR
Loan (including, but not limited to, any loss of profit, premium or penalty
incurred by such Bank as a result of such default with regard to funds
borrowed by it for the purpose of making or maintaining such LIBOR Loan, as
determined by such Bank in the exercise of its reasonable discretion). A
certificate as to any such loss or expense shall be promptly submitted by
such Bank to the Company for its review and to the Administrative Agent and
shall be paid by the Company in the absence of manifest error.
SECTION 3.5. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time
any new law, treaty or regulation, or any change in any existing law,
treaty or regulation, or any published interpretation thereof by any
governmental or other regulatory authority charged with the administration
thereof, shall make it unlawful for any Bank to fund, refinance, continue
or convert into any LIBOR Loans which it is committed to make hereunder
with moneys obtained in the London Interbank Eurodollar market, the
Commitment of such Bank to fund, refinance, continue or convert into LIBOR
Loans shall, upon the happening of such event, be suspended for the
duration of such illegality and such Bank shall by written notice to the
Company and the Administrative Agent declare that its Commitment with
respect to such Loans has been so suspended and, if and when such
illegality ceases to exist, such suspension shall cease and such Bank shall
similarly notify the Company and the Administrative Agent. If any such
change shall make it unlawful for any Bank to continue in effect the
funding in the London Interbank Eurodollar market of any LIBOR Loan
previously made by it hereunder, such Bank shall, upon the happening of
such event, notify the Company and the other Banks thereof in writing
stating the reasons therefor and the Company shall, on the earlier of (i)
the last day of the then current LIBOR Interest Period or (ii) if required
by such law, regulation or interpretation, on such date as shall be
specified in such notice, either convert all LIBOR Loans to Alternate Base
Rate Loans or prepay all LIBOR Loans to the Banks in full. Any such
prepayment or conversion shall not be subject to the prepayment premiums
prescribed in Section 2.1A(x) hereof. Any requests for a LIBOR Loan not
funded pursuant to this Section shall be deemed to have been a request
for an Alternate Base Rate Loan.
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SECTION 3.6. FUNDING. Each Bank may, but shall not be required to, make
LIBOR Loans hereunder with funds obtained outside the United States.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
SECTION 4.1. CORPORATE EXISTENCE. The Company is a corporation duly
organized and in good standing under the laws of the State of Ohio.
SECTION 4.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by the Company of this Agreement and the Notes are within the
Company's corporate powers, have been duly authorized by all necessary
corporate action, and do not and will not contravene or conflict with any
provision of applicable law in effect on the date hereof or of the Amended
Articles of Incorporation or Regulations of the Company or of any agreement
for borrowed money or other material agreement binding upon the Company.
The Company has duly executed and delivered this Agreement.
SECTION 4.3. VALIDITY AND BINDING NATURE. This Agreement is, and the Notes
when duly executed and delivered will be, legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms.
SECTION 4.4. LITIGATION AND LIENS. To the best of the Company's knowledge,
no litigation or proceeding is pending which would, if successful, have a
Material adverse impact on the financial condition of the Company and the
Consolidated Subsidiaries taken as a whole, which is not already reflected
in the Company's Financial Reports delivered to the Banks prior to the date
of this Agreement. The Internal Revenue Service has not alleged any
Material default by the Company in the payment of any tax or threatened to
make any Material assessment in respect thereof which would have or
reasonably could have a Material adverse impact on the financial condition
of the Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 4.5. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency within
the meaning of ERISA and the regulations thereunder. No Reportable Event
has occurred with respect to any Plan which would have a Material adverse
financial impact on the Company or any of its Consolidated Subsidiaries,
taken as a whole. The Pension Benefit Guaranty Corporation, established
under ERISA, has not asserted that the Company or any Consolidated
Subsidiary has incurred any Material liability in connection with any Plan.
No Material lien has been attached and no person has threatened to attach
such a lien on any property of the Company and any Consolidated Subsidiary
as a result of the Company's or any Consolidated Subsidiary's failure to
comply with ERISA.
SECTION 4.6. ENVIRONMENTAL MATTERS. To the best of the Company's
knowledge, the Company and each Subsidiary is in substantial compliance
with all applicable existing laws and regulations (other than laws and
regulations the validity or applicability of which are being contested by
the Company or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted) relating to environmental
control in all jurisdictions where the Company or any Subsidiary is
presently doing business and the Company and each Subsidiary (to the extent
applicable to its operations) is in substantial compliance with the
Occupational Safety and Health Act of 1970 and all rules, regulations and
applicable orders thereunder (other than rules, regulations and orders the
validity or applicability of which are being contested by the
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Company or a Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted).
SECTION 4.7. FINANCIAL REPORTS. The Financial Reports of the Company and
the Consolidated Subsidiaries, furnished to each Bank prior to the date of
this Agreement or from time to time pursuant to this Agreement shall be
true and complete, prepared in accordance with generally accepted
accounting principles, except as stated therein, and fairly present the
Company's and its Consolidated Subsidiaries' financial condition and the
results of their operations for the period encompassed by such Financial
Reports. Since the dates of the Company's most recent Financial Reports
until the date of this Agreement there has been no material adverse change
in the consolidated financial condition of the Company and the
Consolidated Subsidiaries taken as a whole.
SECTION 4.8. REGULATION U. Neither the Company nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or selling
margin stock or extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System). Each of the Banks represents and
warrants to the Company that it is not relying on and will not rely on any
margin stock (as described above) in determining whether to extend or
maintain credit under this Agreement.
SECTION 4.9. GOVERNMENT REGULATION. Neither the Company nor any of its
Consolidated Subsidiaries is registered or is required to be registered as
a public utility under the Public Utility Holding Company Act of 1935 or as
an investment company under the Investment Company Act of 1940.
SECTION 4.10. TAXES. The Company and its Consolidated Subsidiaries have
filed all United States federal income tax returns and all other material
tax returns which are required to have been filed by them (subject to any
available extensions) and have paid all taxes indicated as due on such
returns except for any such taxes being contested by the Company or a
Subsidiary, as the case may be, in good faith by appropriate proceedings
diligently prosecuted (the Company has made adequate and reasonable
provision for all material taxes not yet due and payable), if any, and all
material assessments, if any.
SECTION 4.11. DEFAULTS. No Possible Default exists which would have or
reasonably could have a Material adverse impact on the financial condition
of the Company and the Consolidated Subsidiaries, taken as a whole.
ARTICLE V. OPENING COVENANTS
Prior to or concurrently with the execution and delivery of this
Agreement, the Company shall furnish to each Bank the following:
SECTION 5.1. RESOLUTIONS. Certified copies of the resolutions of the board
of directors of the Company evidencing approval of the execution of this
Agreement and the execution and delivery of the Notes as provided for
herein.
SECTION 5.2. LEGAL OPINION. A favorable opinion of counsel for the Company
as to the matters referred to in Sections 4.1, 4.2, 4.3, 4.4, 4.6 and 4.8
of this Agreement and such other matters as the Banks may reasonably
request.
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SECTION 5.3. CERTIFICATE OF INCUMBENCY. A certificate of the secretary or
assistant secretary of the Company certifying the names of the officers of
the Company authorized to sign this Agreement, and the Notes, together with
the true signatures of such officers.
SECTION 5.4. FINANCIAL REPORTS. The Financial Reports of the Company and
the Consolidated Subsidiaries, dated December 31, 1994, previously
furnished to each Bank, are true and complete, have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with those used by the Company and the Consolidated Subsidiaries
during the Company's immediately preceding full fiscal year, except as
stated therein, and fairly present the Company's and the Consolidated
Subsidiaries' financial condition as of that date and the results of their
operations for the interim period then ending. Since that date there has
been no material adverse change in the Company's and the Consolidated
Subsidiaries' financial condition, properties or business taken as a
whole.
ARTICLE VI. COVENANTS
Until the later of (i) the expiration of the Commitments or (ii) all
obligations of the Company hereunder and under the Notes are satisfied and
paid in full, the Company agrees that, unless at any time the Majority
Banks shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. The Company will (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly maintained
by companies similarly situated, and (b) upon any Bank's written request,
furnish to such Bank such information about the Company's and its
Consolidated Subsidiaries' insurance as such Bank may from time to time
reasonably request, which information shall be prepared in form and detail
reasonably satisfactory to such Bank.
SECTION 6.2. FINANCIAL REPORTS. The Company will furnish to the
Administrative Agent and each Bank:
(i) within sixty (60) days after the end of each of the first
three quarter-annual periods of each of its fiscal years (and,
in any event, in each case as soon as available), the
quarterly Financial Report of the Company and the Consolidated
Subsidiaries as at the end of that period, prepared on a
consolidated basis;
(ii) within ninety (90) days after the end of each of its fiscal
years (and, in any event, in each case as soon as available),
the annual Financial Report of the Company and the
Consolidated Subsidiaries for that year prepared on a
consolidated basis;
(iii) within sixty (60) days after the end of each of its quarterly
accounting periods and within ninety (90) days after the end
of its annual accounting period, a statement signed by a
financial officer of the Company reflecting compliance with
Section 6.3 hereof and to the effect that no Event of Default
has occurred and is continuing or, if there is any such event,
describing it and the steps being taken, if any, to cure such
event;
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(iv) promptly after filing with the Securities and Exchange
Commission, any Form 8-K or Schedule 13D filings applicable to
the Company (or any successor forms or schedules promulgated
by the Securities and Exchange Commission from time to time
which encompass the matters currently addressed in Form 8-K
and Schedule 13D);
(v) written notice of any change in the rating assigned to the
Company's senior unsecured long-term debt by Xxxxx'x, S&P or
Duff & Xxxxxx within thirty (30) days of such change; and
(vi) such other financial information regarding the Company as any
Bank may reasonably request.
SECTION 6.3. NET WORTH. The Company will not permit its Consolidated Net
Worth at any time to fall below Eight Hundred Million Dollars
($800,000,000).
SECTION 6.4. REGULATIONS U AND X. The Company will not nor will it permit
any Subsidiary to take any action that would result in any non-compliance
of the Loans made hereunder with Regulation U and X of the Board of
Governors of the Federal Reserve System. The Company's use of proceeds of
any borrowings under this Agreement will not cause a violation of
Regulation U or X.
SECTION 6.5. MERGER AND SALE OF ASSETS. The Company will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or
consolidate with any other corporation or sell, lease or transfer or
otherwise dispose of all or, during any twelve (12) month period, a
substantial part of its assets to any person or entity (except as otherwise
provided herein); provided, however, if no Possible Default shall then
exist or immediately thereafter will begin to exist:
(i) Any Consolidated Subsidiary may merge with (a) the Company
(provided that the Company shall be the continuing or
surviving corporation) or (b) any one or more other
Consolidated Subsidiaries provided that either the continuing
or surviving corporation shall be a Wholly-Owned Consolidated
Subsidiary, or after giving effect to any merger pursuant to
this sub-clause (b), the Company and/or one or more
Wholly-Owned Consolidated Subsidiaries shall own not less than
the same percentage of the outstanding Voting Stock of the
continuing or surviving corporation as the Company and/or one
or more Wholly-Owned Consolidated Subsidiaries owned of the
merged Consolidated Subsidiary immediately prior to such
merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to (a) the Company, (b)
any Wholly-Owned Consolidated Subsidiary or (c) any
Consolidated Subsidiary of which the Company and/or one or
more Wholly-Owned Consolidated Subsidiaries shall own not less
than the same percentage of Voting Stock as the Company and/or
one or more Wholly-Owned Consolidated Subsidiaries then own of
the Consolidated Subsidiary making such sale, lease, transfer
or other disposition,
(iii) The Company may sell the stock or assets of any Consolidated
Subsidiary if such sale or other disposition is determined by
the board of directors of the Company to be in the best
interests of the Company and such sale is for a consideration
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which represents the fair value (as determined in good faith
by the board of directors of the Company) thereof at the time
of such sale of such stock or assets,
(iv) The Company may merge with any other corporation, provided
that the Company shall be the surviving corporation,
(v) The Company or any Consolidated Subsidiary may sell all or any
part of the assets of any of its divisions or operations if
such sale or other disposition is determined by the board of
directors of the Company and/or such Consolidated Subsidiary,
as the case may be, to be in the best interests of the Company
and/or such Consolidated Subsidiary, as the case may be, and
such sale is for a consideration which represents the fair
value (as determined in good faith by the board of directors
of the Company) thereof at the time of such sale or other
disposition of such assets, or
(vi) The Company or any Subsidiary may sell or transfer all or any
part of the assets of any of its divisions or operations to
any Subsidiary.
In the event there occurs a Change of Control of the Company, the
Commitments of the Banks will immediately terminate. For purposes of this
paragraph, a "Change of Control" shall occur if:
(a) there shall be consummated (i) any consolidation or
merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of the Company's common stock would be converted into
cash, securities or other property, other than a merger of the
Company in which the holders of the Company's common stock
immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (ii) any sale,
lease, exchange or transfer (in one transaction or a series of
related transactions) of fifty percent (50%) or more of the
assets or earning power of the Company;
(b) any "person" (as such term is used in Sections as
13(d) and 14(d)(2) of the Exchange Act, as amended, other than
the Company or any employee benefit or stock ownership plan
sponsored by the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such Plan, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifteen percent (15%)
or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from rights
accruing in special circumstances) having the right to vote in
the election of directors, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases
or otherwise; or
(c) during any period of two (2) consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Company and any new director
whose election by such Board of Directors or nomination for
election by the Company's shareholders was approved by a vote
of at least two-thirds ( 2/3) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof.
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Notwithstanding subparagraph (a) through (c) above,
with respect to the transactions set forth in subparagraphs
(a) and (b) above, a Change of Control shall not be deemed to
have occurred if any such transaction (i) is approved by a
vote of at least two-thirds ( 2/3) of the directors and (ii)
at the time of such vote, at least two-thirds ( 2/3) of the
directors then in office were members of the Board of
Directors of the Company immediately prior to such
transaction.
SECTION 6.6. NOTICE. Until the Termination Date, the Company will cause
its treasurer, or in his absence another representative of the Company
designated by the treasurer, to promptly notify the Banks and the
Administrative Agent whenever any Material Possible Default may occur or
any warranty made in Article IV hereof or elsewhere in this Agreement or in
any Related Writing may for any reason cease in any Material respect to be
true and complete.
SECTION 6.7. LIENS. The Company will not and will not permit any
Consolidated Subsidiary to create, assume or suffer to exist any lien upon
any of its property or assets (hereinafter "Properties") whether now owned
or hereafter acquired without effectively providing that any borrowings
under this Agreement shall be secured equally and ratably with all other
indebtedness thereby secured; provided that this Section shall not
apply to the following:
(i) liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings,
(ii) other liens incidental to the conduct of its business or the
ownership of its Properties 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 Properties or
materially impair the use thereof in the operation of its
business,
(iii) liens on Properties of a Consolidated Subsidiary to secure
obligations of such Consolidated Subsidiary to the Company or
another Consolidated Subsidiary,
(iv) liens on Properties of the Company and/or its Consolidated
Subsidiaries existing on the date hereof,
(v) any lien existing on any Properties of any corporation at the
time it becomes a Consolidated Subsidiary, existing prior to
the time of acquisition upon any Properties acquired by the
Company or any Consolidated Subsidiary through purchase,
merger, consolidation or otherwise, whether or not assumed by
the Company or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real property
(hereinafter in this subparagraph (vi) "Asset") at the time of
acquisition by the Company or any Consolidated Subsidiary to
secure all or a portion of [or to secure indebtedness incurred
prior to, at the time of, or (in the case of any Asset
acquired with the intent to obtain subsequent financing
thereof secured by a lien) within one (1) year after the
acquisition of such Asset for the purpose of financing all or
a portion of] the purchase price thereof, provided that any
such lien shall not encumber any other Properties of the
Company or such Consolidated Subsidiary,
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(vii) any lien placed upon any real property now owned or hereafter
acquired by the Company or any of its Subsidiaries securing
indebtedness in an amount up to eighty percent (80%) of the
fair market value of such real property,
(viii) liens in favor of the United States of America or any
department or agency thereof, or in favor of any state
government or political subdivision thereof, or in favor of a
prime contractor under a government contract of the United
States, or of any state government or any political
subdivision thereof, and, in each case, resulting from
acceptance of partial, progress, advance or other payments in
the ordinary course of business under government contracts of
the United States, or of any state government or any political
subdivision thereof, or subcontracts thereunder,
(ix) liens created, assumed or existing in connection with a
tax-free financing,
(x) any lien renewing, extending or refunding any lien permitted
by clauses (iv), (v), (vi), (vii), (viii) and (ix) above,
provided that the principal amount secured is not materially
increased, and the lien is not extended to other Properties,
and
(xi) liens other than those permitted by clauses (i) through (x)
above, provided that the aggregate amount of all indebtedness
secured by liens permitted by this clause (xi) shall not at
any time exceed fifteen percent (15%) of Consolidated Net
Worth.
SECTION 6.8. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency within
the meaning of ERISA and the regulations thereunder, or any Material
liability to the Pension Benefit Guaranty Corporation or any successor
thereto in connection with any Plan. The Company will furnish to the Banks
as soon as possible and in any event within thirty (30) days after the
Company or such Consolidated Subsidiary knows or has reason to know that
any Material Reportable Event with respect to any Plan has occurred a
statement of the chief financial officer of the Company or such
Consolidated Subsidiary setting forth details as to such Reportable Event
and the action which the Company or such Consolidated Subsidiary proposes
to take with respect thereto, together with a copy of the notice of such
Reportable Event given to the Pension Benefit Guaranty Corporation if a
copy of such notice is available to the Company or such Consolidated
Subsidiary.
SECTION 6.9. NOTICE OF DEFAULT. The Company will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to each Bank and
the Administrative Agent of the occurrence of any Possible Default and of
any other development, financial or otherwise, with respect to which there
is a significant probability of a Material adverse impact on Consolidated
Net Worth or on the Company's ability to repay the Notes.
SECTION 6.10. CONDUCT OF BUSINESS. The Company will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in
substantially the same manner as it is presently conducted and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
SECTION 6.11. TAXES. The Company will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental charges
and levies upon it or its income, profits or property, except those which
are being contested in good faith by appropriate proceedings.
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SECTION 6.12. ENVIRONMENTAL. The Company will use its best good faith
efforts to comply and to cause each Subsidiary to comply with all such laws
and regulations (other than laws and regulations the validity or
applicability of which are being contested by the Company or a Subsidiary,
as the case may be, in good faith by appropriate proceedings diligently
prosecuted) which may be legally imposed in the future in jurisdictions in
which the Company or any Subsidiary may then be doing business.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default":
SECTION 7.1. NON-PAYMENT OF NOTES, INTEREST OR FACILITY FEE. If the
principal on any Note shall not be paid in full when due and payable and
shall remain unpaid for a period of three (3) consecutive business days
and/or any interest due on any Note or any Facility Fee shall not be paid
within five (5) business days after written notice thereof to the Company
from the Bank (or Administrative Agent) to whom such amount(s) are owed.
SECTION 7.2. COVENANTS. If the Company shall fail or omit to perform and
observe any agreement or other provision (other than those referenced in
Section 7.1 hereof) contained or referred to in this Agreement or in any
Related Writing that is on the Company's part to be complied with, and such
failure or omission, if not fully corrected within thirty (30) days after
the giving of written notice thereof to the Company by any Bank that such
failure or omission would have or reasonably could have a Material adverse
impact on the financial condition of the Company and the Consolidated
Subsidiaries, taken as a whole (provided, however, that the financial
covenant in Section 6.3 shall be applied without regard to any materiality
standard).
SECTION 7.3. WARRANTIES. If any representation, warranty or statement made
in or pursuant to this Agreement or any Related Writing or any other
information furnished by the Company to the Banks or any other holder of
any Note, shall be false or erroneous in any respect which would have or
reasonably could have a Material adverse impact on the financial condition
of the Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.4. CROSS DEFAULT. If the Company or any of its Consolidated
Subsidiaries (i) default in the payment of principal or interest due and
owing upon any other Material obligation for borrowed money beyond any
period of grace provided with respect thereto or (ii) default in the
performance of any other agreement, term or condition contained in any
agreement under which such obligation is created, and any such default is
not waived by the holders of such agreement or instrument, and if the
effect of such unwaived default would (a) accelerate the maturity of such
indebtedness or permit the holder thereof to cause such indebtedness to
become due prior to its stated maturity and (b) have or reasonably could
have a Material adverse impact on the financial condition of the
Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If the
Company or a Consolidated Subsidiary representing in excess of ten percent
(10%) of total consolidated assets of the Company and the Consolidated
Subsidiaries shall (i) discontinue business (except as permitted under
Section 6.5 hereof) or (ii) generally not pay (or admit in writing its
inability to pay) its debts as such debts become due, or (iii) make a
general assignment for the benefit of creditors, or (iv) apply for or
consent to the appointment of a receiver, a custodian, a trustee, an
interim trustee or a liquidator of all or a substantial part of its assets,
or (v) be adjudicated an insolvent debtor or have entered against it
an order for relief under Title 11
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of the United States Code, as the same may be amended from to time to time,
or (vi) file a voluntary petition in bankruptcy or file a petition or an
answer seeking reorganization or an arrangement with creditors or seeking
to take advantage of any other law (whether federal or state) relating to
relief of debtors, or admit (by answer, by default or otherwise) the
substantive allegations of a petition filed against it in any bankruptcy,
reorganization, insolvency or other comparable proceeding (whether federal
or state) relating to relief of debtors, or (vii) suffer or permit to
continue unstayed and in effect for sixty (60) consecutive days any
judgment, decree or order entered by a court of competent jurisdiction,
which approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator of all or a
substantial part of its assets.
ARTICLE VIII. EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. If any Event of Default described
in Section 7.5 hereof shall occur, the Commitments (if they have not
already been terminated) shall immediately terminate and all Notes shall
automatically become immediately due and payable, without notice. If any
other Event of Default shall occur and shall not have been remedied within
an allowable time period referred to in this Agreement, then the Majority
Banks may terminate the Commitments (if they have not already been
terminated) and the Outstanding Majority Banks may declare that all Notes
shall become immediately due and payable. The Majority Banks and the
Outstanding Majority Banks shall promptly notify the Company in writing of
any such declaration. The effect as an Event of Default of any event
described in Section 7.1 or 7.5 hereof may be waived only by the written
concurrence of the holders of one hundred percent (100%) of the
Commitments, or in the event there are no Commitments, by one hundred
percent (100%) of the holders of outstanding Notes. The effect as an Event
of Default of any other event described in Sections 7.2, 7.3 or 7.4 may be
waived by the holders of fifty-one percent (51%) by amount of the
Commitments.
ARTICLE IX. THE ADMINISTRATIVE AGENT
The Banks hereby authorize Bank of America National Trust and Savings
Association ("BOA") and BOA hereby agrees to act as Administrative Agent
for the Banks in respect of this Agreement upon the terms and conditions
set forth elsewhere in this Agreement, and upon the following terms and
conditions:
SECTION 9.1. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints and authorizes the Administrative Agent to exercise such powers
hereunder as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
Notwithstanding anything in this Agreement to the contrary, or in a Related
Writing, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Bank. Neither the Administrative Agent nor any of its directors,
officers, attorneys or employees shall be liable for any action taken or
omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
SECTION 9.2. NOTE HOLDERS. The Administrative Agent may treat the payee of
any Note as the holder thereof until written notice of transfer shall have
been filed with it signed by such payee and in form satisfactory to the
Administrative Agent.
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SECTION 9.3. CONSULTATION WITH COUNSEL. The Administrative Agent may
consult with legal counsel selected by it (including in-house counsel) and
shall not be liable for any reasonable action taken or suffered in good
faith by it in accordance with the written opinion of external counsel,
issued before such action is taken or suffered.
SECTION 9.4. DOCUMENTS. The Administrative Agent shall not be under a duty
to examine into or pass upon the validity, effectiveness, genuineness
or value of this Agreement, the Notes, any Related Writing furnished
pursuant hereto or in connection herewith or the value of any collateral
obtained hereunder, and the Administrative Agent shall be entitled to
assume that the same are valid, effective and genuine and what they purport
to be.
SECTION 9.5. ADMINISTRATIVE AGENT AND AFFILIATES. With respect to the
Loans made hereunder, the Administrative Agent shall have the same
rights and powers hereunder 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
affiliate of the Company.
SECTION 9.6. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed
that the Administrative Agent shall be entitled to assume that no
Possible Default has occurred and is continuing, unless the Administrative
Agent has actual knowledge of such fact or has been notified by a Bank that
such Bank considers that a Possible Default has occurred and is continuing
and specifying the nature thereof.
SECTION 9.7. ACTION BY ADMINISTRATIVE AGENT. So long as the Administrative
Agent shall be entitled, pursuant to Section 9.6 hereof, to assume that
no Possible Default shall have occurred and be continuing, the
Administrative Agent shall be entitled to use its discretion with respect
to exercising or refraining from exercising any rights which may be vested
in it by, or with respect to taking or refraining from taking any action or
actions which it may be able to take under or in respect of, this
Agreement. The Administrative Agent shall incur no liability under or in
respect of this Agreement by action upon any notice, certificate, warranty
or other paper or instrument reasonably believed by it to be genuine or
authentic or to be signed by the proper party or parties, or with respect
to anything which it may do or refrain from doing in the reasonable
exercise of its judgment, or which the Administrative Agent reasonably
believes to be necessary or desirable in the premises.
SECTION 9.8. INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Company),
ratably according to the respective principal amounts of their Commitments
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs (including reasonable external
counsel costs), expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Administrative
Agent in any action taken or omitted by the Administrative Agent with
respect to this Agreement, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent's gross negligence or willful misconduct or from
any action taken or omitted by the Administrative Agent in any capacity
other than as agent under this Agreement.
SECTION 9.9. SUCCESSOR. The Company may select a successor or alternate
Administrative Agent with the approval of the holders of fifty-one
percent (51%) by amount of the Commitments.
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ARTICLE X. MISCELLANEOUS
SECTION 10.1. BANKS' INDEPENDENT INVESTIGATION. Each Bank by its signature
to this Agreement acknowledges and agrees that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Company and any Subsidiary in
connection with the extension of credit hereunder, and agrees that no other
Bank nor the Administrative Agent has any duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or
other information with respect thereto whether coming into its possession
before the making of the first Loans or at any time or times thereafter.
SECTION 10.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of
dealing on the part of any Bank or the holder of any Note in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and in addition to any other rights, powers or privileges held
by operation of law, by contract or otherwise.
SECTION 10.3. AMENDMENTS. Except as otherwise specifically provided herein,
no amendment, modification, termination, or waiver of any provision of
this Agreement or of the Notes, nor consent to any variance therefrom,
shall be effective unless the same shall be in writing and signed by the
Company and the Majority Banks and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
The unanimous consent of the Banks, shall be required with respect to
(i) the change of maturity of the Notes, or the payment date of interest
thereunder, (ii) any change in the rate of interest on such Notes, or in
the rate at which the Facility Fee referred to in Section 2.3 hereof shall
be calculated or in any amount of principal or interest due on any Note, or
in the manner of pro rata application of any payments made by the Company
to the Banks hereunder, (iii) any change in any percentage voting
requirement in this Agreement, (iv) any change in any date specified in
this Agreement for the payment of principal or interest on any Note or for
the payment of any Facility Fee hereunder, (v) any increase in any Bank's
Commitment or Percentage, except pursuant to Section 2.5(iii) hereof, or
any increase in the aggregate of all of the Banks' Commitments hereunder or
(vi) any change to this Section 10.3. No amendments to the duties or
responsibilities of the Administrative Agent may be made without the prior
written consent of the Administrative Agent except provided in Section 9.9
hereof.
Notice of amendments or consents ratified by the Banks hereunder shall
immediately be forwarded by the Company to all Banks. Each Bank or other
holder of a Note shall be bound by any amendment, waiver or consent
obtained as authorized by this Section, regardless of its failure to agree
thereto.
SECTION 10.4. CONFIDENTIALITY. Unless the Company otherwise agrees in
writing, each Bank hereby agrees to keep all Proprietary Information
(as defined below) confidential and not to disclose or reveal any
Proprietary Information to any person or entity other than the Bank's
directors, officers, employees, affiliates, and agents, and then only on a
confidential need-to-know basis; provided, however that a Bank may disclose
Proprietary Information (a) as required by law, rule, regulation, or
judicial process, (b) to its attorneys and accountants, (c) as requested or
required by a state, federal, or foreign authority or examiner regulating
banks or banking, or (d) to actual or potential assignees or participants
as permitted by Section 10.9 hereof who agree to be bound by the provisions
of this Section. For purposes of this Agreement, the term
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"Proprietary Information" shall include all information about the
Company, any Subsidiary, or any of their respective affiliates which has
been furnished by the Company, any Subsidiary, or any of their respective
affiliates, whether furnished before or after the date hereof, and
regardless of the manner furnished; provided, however, that Proprietary
Information shall not include information which (x) is or becomes generally
available to the public other than as a result of a disclosure by a Bank
not permitted by this Agreement, (y) was available to a Bank on a
nonconfidential basis prior to its disclosure to such Bank by the Company,
any Subsidiary, or any of their respective affiliates, or (z) becomes
available to a Bank on a nonconfidential basis from a person and/or entity
other than the Company, any Subsidiary, or any of their respective
affiliates who, to the best knowledge of such Bank, is not otherwise bound
by a confidentiality agreement with the Company, any Subsidiary, or any of
their respective affiliates, or, to the best knowledge of such Bank, is not
otherwise prohibited from transmitting the information to such Bank.
SECTION 10.5. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to
the Company or a Subsidiary, mailed or delivered to it, addressed to it at
the address of the Company herein specified, and if to a Bank, mailed or
delivered to it, addressed to the address of such Bank specified on its
signature page to this Agreement. All notices, statements, requests,
demands and other communications provided for hereunder shall be deemed to
be given or made when received.
SECTION 10.6. COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses (including reasonable legal
fees for outside counsel) of the Banks incurred directly as a result of the
enforcement of this Agreement, the Notes and the other instruments and
documents in connection herewith.
SECTION 10.7. OBLIGATIONS SEVERAL. The obligations of the Banks hereunder
are several and not joint. Nothing contained in this Agreement and no
action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks as a partnership, association, joint venture or other entity. No
default by any Bank hereunder shall excuse the other Banks from any
obligation under this Agreement; but no Bank shall have or acquire any
additional obligation of any kind by reason of such default.
SECTION 10.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and when taken together shall constitute one and the same
agreement.
SECTION 10.9. ASSIGNMENTS AND PARTICIPATIONS.
A. ASSIGNMENTS. Unless the Company otherwise consents in writing, which
consent shall not be unreasonably withheld, no payee or other party
in possession of any Note (including any Bank) shall assign or
transfer any Note or any interest therein to any other person or
entity, except as otherwise permitted under this Section, or negotiate
any Note, as such term is defined in Ohio Revised Code Chapter 1303.
Except as otherwise expressly agreed in writing by the Company, no
Bank shall, by reason of the assignment or transfer of any Note or
otherwise, be relieved of any of its obligations hereunder. Each
transferee of any Note shall take such Note subject to the provisions
of this Agreement and to any request made, waiver or consent given, or
other action taken hereunder, prior to such transfer, by each previous
holder of such Note; and the Company shall be entitled to conclusively
assume that the transferee shall thereafter be vested with all rights
and powers under this Agreement of the Bank named as the payee of the
Note which is the
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subject of such transfer. Nothing herein shall prohibit any Bank from
pledging or assigning any Note to any Federal Reserve Bank of the
United States pursuant to applicable law. No party in possession of a
Note shall be a "Holder" as such term is defined in Ohio Revised Code
Chapter 1303. Notwithstanding any provision of this Section 10.9 to
the contrary, the Company may not assign or transfer any of its rights
or obligations hereunder without the consent of the holders of one
hundred percent (100%) by amount of the Commitments.
B. PARTICIPATIONS. Any Bank may grant participations in or to all or any
part of any Loan or Loans then owing to such Bank hereunder and the
Notes held by such Bank without the consent of the Company which
consent shall not be unreasonably withheld. Except as otherwise
expressly agreed in writing by the Company, no grant of a
participation shall relieve any Bank of its obligations hereunder.
The Company shall be entitled to deal solely with the Banks (and their
respective assignees) for all purposes of this Agreement and the
Notes, and no holder of a participation in all or any part of the
Loans or the Notes shall have any rights under this Agreement and
shall not be a Holder of any Note, as such term is defined in Ohio
Revised Code Chapter 1303.
C. DISCLOSURE OF INFORMATION. The Company hereby consents to the
disclosure of any information obtained in connection herewith by any
Bank to any entity which is an assignee or potential assignee or a
participant or potential participant pursuant to Section 10.9A or
10.9B hereof, it being understood that such Bank shall advise any such
actual or potential assignee or participant of its obligation to keep
confidential any nonpublic information disclosed to it pursuant to
this Section 10.9 and, prior to the disclosure of such information,
shall cause each such actual or potential assignee or participant to
execute a confidentiality agreement containing the confidentiality
provisions set forth in Section 10.4 hereof.
D. SECURITIES LAWS. Each Bank represents that it is the present
intention of such Bank to acquire each Note drawn to its order for its
own account and not with a view to the distribution or sale thereof.
SECTION 10.10. TAX FORMS. With respect to each Bank which is organized under
the laws of a jurisdiction outside the United States, on the date of
any borrowing, (which claims, exemption from, or reduction of, United
States withholding tax under Sections 1441 or 1442 of the Internal Revenue
Code of 1986, as amended) and from time to time thereafter if requested by
the Company or the Administrative Agent, each such Bank shall provide the
Administrative Agent and the Company with the forms prescribed by the
Internal Revenue Service of the United States certifying as to such Bank's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to such Bank hereunder or
other documents satisfactory to the Company and the Administrative Agent
indicating that all payments to be made to such Bank hereunder are subject
to such tax at a rate reduced by an applicable tax treaty. Unless the
Company and the Administrative Agent have received such forms and such
other documents reasonably requested by the Administrative Agent or the
Company indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Company or the Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Bank organized under the laws of a
jurisdiction outside the Unites States.
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SECTION 10.11. ENTIRE AGREEMENT. This Agreement supersedes any prior
agreement or understanding of the parties hereto, and contains the entire
agreement of the parties hereto, with respect to the matters covered
hereby.
SECTION 10.12. GOVERNING LAW. This Agreement, each of the Notes and any
Related Writing shall be governed by and construed in accordance with the
laws of the State of Ohio and the respective rights and obligations of the
Company and the Banks shall be governed by Ohio law.
SECTION 10.13. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
SECTION 10.14. PRESS RELEASES. Neither the Administrative Agent nor any bank
shall issue any press release regarding this Agreement without the prior
written consent of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date indicated above.
THE XXXXXXX-XXXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
XXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT-
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------
XXXXX X. XXXXXXXXXXX
Title: ASSISTANT SECRETARY AND
CORPORATE DIRECTOR OF TAXES
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CONSENT TO SERVE AS ADMINISTRATIVE AGENT
The undersigned authorized representative of Bank of America National
Trust and Savings Association hereby consents on behalf of Bank of America
National Trust and Savings Association to serve as Administrative Agent under
that certain 364-Day Revolving Credit Agreement dated August 31, 1995 by and
among The Xxxxxxx-Xxxxxxxx Company as Borrower, Bank of America National Trust
and Savings Association as Administrative Agent and the Banks named in such
Agreement.
BANK OF AMERICA NATIONAL TRUST
and SAVINGS ASSOCIATION
ADMINISTRATIVE AGENT
By: /s/ Xxxxx X.X. Xxxxxx
-----------------------------------
Title: XXXXX X.X. XXXXXX
VICE PRESIDENT
31
Amount of Percentage of
Commitment Commitments
---------- -----------
$11,428,571.43 11.4286% Trust Company Bank
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: XXXX X. XXXXXXX
Title: ASSISTANT VICE PRESIDENT
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT
Trust Company Bank
X.X. Xxx 0000, Xxxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
---------------------
Facsimile: (000) 000-0000
---------------------
32
Amount of Percentage of
Commitment Commitments
---------- -----------
$11,428,571.43 11.4286% Bank of America, Illinois
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: XXXX X. XXXXXXX
Title: VICE PRESIDENT
Bank of America, Illinois
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
--------------------------
Facsimile: (000) 000-0000
--------------------------
33
Amount of Percentage of
Commitment Commitments
---------- -----------
$10,000,000.00 10.0% National City Bank
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT AND
SENIOR LENDING OFFICER
National City Bank
Xxxxxxxx Xxxx Xxxxxx
Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
34
Amount of Percentage of
Commitment Commitments
---------- -----------
$10,000,000.00 10.0% Society National Bank
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: XXXXXXXX X. XXXX
Title: ASSISTANT VICE PRESIDENT
Society National Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 44ll4
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
35
Amount of Percentage of
Commitment Commitments
---------- -----------
$7,142,857.14 7.1429% First National Bank of Chicago
By: /s/ Xxxxxx X. Fast
----------------------------------
Name: XXXXXX X. FAST
Title: AUTHORIZED AGENT
First National Bank of Chicago
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
36
Amount of Percentage of
Commitment Commitments
---------- -----------
$7,142,857.14 7.1429% First Interstate Bank of California
By: /s/ Xxxxx X.X. Xxxxxxx
----------------------------------
Name: XXXXX X.X. XXXXXXX
Title ASSISTANT VICE PRESIDENT
First Interstate Bank of California
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
37
Amount of Percentage of
Commitment Commitments
---------- -----------
$7,142,857.14 7.1429% The Bank of Nova Scotia
By: /s/ F.C.H. Xxxxx
----------------------------------
Name: F.C.H. XXXXX
Title: SENIOR MANAGER LOAN OPERATIONS
The Bank of Nova Scotia
000 Xxxxxxxxx Xx., XX
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
38
Amount of Percentage of
Commitment Commitments
---------- -----------
$7,142,857.14 7.1429% Chemical Bank
By: /s/ X. Xxxxx
----------------------------------
Name: X. XXXXX
Title ASSISTANT MANAGER
Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (0) 000-000-0000
-----------------------------
Facsimile: (0) 000-000-0000
-----------------------------
39
Amount of Percentage of
Commitment Commitments
---------- -----------
$5,714,285.71 5.7143% NationsBank, N.A. (Carolinas)
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: VICE PRESIDENT
NationsBank, N.A. (Carolinas)
Corporate Bank
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
40
Amount of Percentage of
Commitment Commitments
---------- -----------
$5,714,285.71 5.7143% Deutsche Bank AG
By: /s/ J. Xxxxx Xxxx
----------------------------------
Name: J. XXXXX XXXX
Title: VICE PRESIDENT
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: XXXX XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
Deutsche Bank AG
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone:_____________________________
Facsimile:_____________________________
41
Amount of Percentage of
Commitment Commitments
---------- -----------
$5,714,285.72 5.7143% First Union National Bank of
North Carolina
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
First Union National Bank of
North Carolina
000 Xxxxx Xxxxxxx Xxxxxx
XX-00 Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
---------------------------
Xxxxxx Xxxx
Facsimile: (000) 000-0000
----------------------------
42
Amount of Percentage of
Commitment Commitments
---------- -----------
$5,714,285.72 5.7143% The Bank of New York
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: XXXXXX X. XXXXX
Title: VICE PRESIDENT
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
43
Amount of Percentage of
Commitment Commitments
---------- -----------
$5,714,285.72 5.7143% ABN-AMRO Bank N.V.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name X. X. XXXX
Title: VICE PRESIDENT
By: /s/ Xxxxxxx X. Amoposo
----------------------------------
Name XXXXXXX X. AMOPOSO
Title: VICE PRESIDENT
ABN-AMRO Bank N.V.
Pittsburgh Branch
Xxx XXX Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
--------------------------
Facsimile: (000) 000-0000
--------------------------
