EXHIBIT 10.2
Conformed Copy
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Five-Year
CREDIT AGREEMENT
dated as of
January 27, 1999
among
ARCH CHEMICALS, INC.,
XXXX CORPORATION,
The Lenders Party Hereto,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Syndication Agent,
WACHOVIA BANK, N.A., as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01 Defined Terms....................................... 2
SECTION 1.02 Classification of Loans and Borrowings.............. 23
SECTION 1.03 Terms Generally..................................... 23
SECTION 1.04 Accounting Terms; GAAP.............................. 24
ARTICLE II
The Credits
SECTION 2.01 Commitments......................................... 24
SECTION 2.02 Loans and Borrowings................................ 24
SECTION 2.03 Requests for Revolving Borrowings................... 25
SECTION 2.04 Competitive Bid Procedure........................... 26
SECTION 2.05 Swingline Loans..................................... 28
SECTION 2.06 Letters of Credit................................... 30
SECTION 2.07 Funding of Borrowings............................... 34
SECTION 2.08 Interest Elections.................................. 35
SECTION 2.09 Termination and Reduction of Commitments............ 37
SECTION 2.10 Repayment of Loans; Evidence of Debt................ 37
SECTION 2.11 Prepayment of Loans................................. 38
SECTION 2.12 Fees................................................ 39
SECTION 2.13 Interest............................................ 40
SECTION 2.14 Alternate Rate of Interest.......................... 41
SECTION 2.15 Increased Costs..................................... 42
SECTION 2.16 Break Funding Payments.............................. 43
SECTION 2.17 Taxes............................................... 44
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing
of Set-offs......................................... 46
SECTION 2.19 Mitigation Obligations; Replacement of Lenders...... 47
ARTICLE III
Representations and Warranties
SECTION 3.01 Organization; Powers................................. 48
SECTION 3.02 Authorization; Enforceability........................ 49
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SECTION 3.03 Governmental Approvals; No Conflicts................ 49
SECTION 3.04 Financial Condition; No Material Adverse
Change.............................................. 49
SECTION 3.05 Properties.......................................... 50
SECTION 3.06 Litigation and Environmental Matters................ 50
SECTION 3.07 Compliance with Laws and Agreements................. 51
SECTION 3.08 Investment and Holding Company Status............... 51
SECTION 3.09 Taxes............................................... 51
SECTION 3.10 ERISA............................................... 51
SECTION 3.11 Disclosure.......................................... 51
SECTION 3.12 Year 2000........................................... 52
SECTION 3.13 No Default.......................................... 52
SECTION 3.14 Federal Regulations................................. 52
SECTION 3.15 Labor Matters....................................... 52
SECTION 3.16 Options............................................. 52
SECTION 3.17 Insurance........................................... 53
ARTICLE IV
Conditions
SECTION 4.01 Loans to Xxxx....................................... 53
SECTION 4.02 Loans to the Company................................ 54
SECTION 4.03 Each Credit Event................................... 55
ARTICLE V
Affirmative Covenants
SECTION 5.01 Financial Statements; Ratings Change
and Other Information............................... 56
SECTION 5.02 Notices of Material Events.......................... 57
SECTION 5.03 Existence; Conduct of Business...................... 58
SECTION 5.04 Payment of Obligations.............................. 59
SECTION 5.05 Maintenance of Properties; Insurance................ 59
SECTION 5.06 Books and Records; Inspection Rights................ 59
SECTION 5.07 Compliance with Laws................................ 59
SECTION 5.08 Use of Proceeds and Letters of Credit............... 59
SECTION 5.09 Environmental Laws.................................. 59
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ARTICLE VI
Negative Covenants
SECTION 6.01 Indebtedness........................................ 60
SECTION 6.02 Liens............................................... 61
SECTION 6.03 Fundamental Changes................................. 62
SECTION 6.04 Hedging Agreements.................................. 62
SECTION 6.05 Restricted Payments................................. 62
SECTION 6.06 Transactions with Affiliates........................ 62
SECTION 6.07 Disposition of Property............................. 63
SECTION 6.08 Payments and Modifications of Certain Debt
Instruments......................................... 63
SECTION 6.09 Sales and Leasebacks................................ 64
SECTION 6.10 Changes in Fiscal Periods........................... 64
SECTION 6.11 Lines of Business................................... 64
SECTION 6.12 Financial Covenants................................. 64
SECTION 6.13 Xxxx Affirmative and Negative Covenants............. 64
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent, Syndication Agent and Documentation Agent
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices............................................. 69
SECTION 9.02 Waivers; Amendments................................. 72
SECTION 9.03 Expenses; Indemnity; Damage Waiver.................. 72
SECTION 9.04 Successors and Assigns.............................. 74
SECTION 9.05 Survival............................................ 77
SECTION 9.06 Counterparts; Integration; Effectiveness............ 78
SECTION 9.07 Severability........................................ 78
SECTION 9.08 Right of Setoff..................................... 78
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service
of Process.......................................... 78
SECTION 9.10 WAIVER OF JURY TRIAL................................ 79
SECTION 9.11 Headings............................................ 80
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SECTION 9.12 Confidentiality..................................... 80
SECTION 9.13 Interest Rate Limitation............................ 80
SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Xxxx Credit Agreement Affirmative Covenants, Negative Covenants
and Defined Terms
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CREDIT AGREEMENT dated as of January 27, 1999, among ARCH CHEMICALS,
INC., a Virginia corporation ("Arch" or the "Company"), XXXX CORPORATION, a
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Virginia corporation ("Olin"), the LENDERS party hereto, BANK OF AMERICA,
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NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication Agent, WACHOVIA BANK OF
GEORGIA, N.A., as Documentation Agent and THE CHASE MANHATTAN BANK, as
Administrative Agent.
WHEREAS, the Company and Xxxx desire to establish a five year
revolving credit facility in the amount of $125,000,000 as provided herein;
WHEREAS, Xxxx will borrow an amount not to exceed $75,000,000 under
this facility on the Xxxx Closing Date, such funds to be used for Olin's general
corporate purposes;
WHEREAS, after such borrowing, Xxxx will effect the Spin-Off, pursuant
to which substantially all of the specialty chemicals businesses of Xxxx and its
subsidiaries will be transferred to the Company and 100% of the shares of
capital stock of the Company will be distributed to the owners of Olin's
common stock;
WHEREAS, effective upon the consummation of the Company Closing, the
Company will assume all of the obligations of Xxxx hereunder and Xxxx will be
released from such obligations;
WHEREAS, after the Company Closing Date, the Company will use funds
available under this facility for its general corporate purposes in the ordinary
course of business; and
WHEREAS, on the terms and conditions provided herein, the Lenders are
willing to (i) lend up to $75,000,000 to Xxxx on the Xxxx Closing Date, (ii)
release Xxxx from its obligations hereunder upon the assumption of such
obligations by the Company on the Company Closing Date and (iii) make Loans to
the Company from time to time after the Company Closing Date;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01 Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accounts Receivable" means presently existing and hereafter arising
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or acquired accounts receivable, notes, drafts, acceptances, general
intangibles, choses in action and other forms of obligations and receivables
relating in any way to inventory or arising from the sale of inventory or the
rendering of services or howsoever otherwise arising, and assets relating
thereto, including all collateral securing such accounts receivable, all
contracts and all Guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and all other assets that are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable, and including the right to payment of any
interest or finance charges, sales tax, returned checks or late charges or other
obligations with respect thereto and all proceeds of insurance with respect
thereto, and all books, customer lists, ledgers, records and files (whether
written or stored electronically) relating to any of the foregoing.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent, the
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Documentation Agent and the Syndication Agent.
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"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percent
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age of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, with respect to any ABR Loan, or Eurodollar
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Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, for any day (i) prior to a Ratings Event, the applicable rate per
annum set forth below:
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Consolidated Leverage
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Ratio ABR Spread Eurodollar Spread Facility Fee Rate
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less than equal to 0.5 0.0% 0.425 % 0.200 %
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greater than 0.5 and less than equal to 1.5 0.0% 0.525 % 0.225 %
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greater than 1.5 and less than equal to 2.5 0.0% 0.625 % 0.250 %
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greater than 2.5 0.0% 0.950 % 0.300 %
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provided that, for purposes of the foregoing, changes in the Applicable Rate
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resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "Adjustment Date") on which financial statements are delivered
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to the Lenders pursuant to Section 5.01 (but in any event, not later than the
45/th/ day after the end of each of the first three quarterly periods of each
fiscal year or the 90/th/ day after the end of each fiscal year, as the case may
be) and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 2.5 to 1.0. In addition, at any time
prior to the receipt of the first financial statements to be delivered pursuant
to Section 5.01(a), the Consolidated Leverage Ratio shall for the purposes of
this definition be deemed to be greater than 0.5 and less than or equal to 1.5
to 1.0, and at all times while an Event of Default shall have occurred and be
continuing, the Consolidated Leverage Ratio shall for the purposes of this
definition be deemed to be greater than 2.5 to 1.0. Each determination of the
Consolidated Leverage Ratio pursuant to this pricing grid shall be made with
respect to (or, in the case of Consolidated Total
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Debt, as at the end of) the period of four consecutive fiscal quarters of the
Borrower ending at the end of the period covered by the relevant financial
statements; and
(ii) at all times on and after a Ratings Event, the applicable rate per annum
set forth below:
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Senior Unsecured
Debt Rating ABR Spread Eurodollar Spread Facility Fee Rate
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A/A3 0.0% 0.325% 0.175%
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BBB+/Baa1 0.0% 0.425% 0.200%
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BBB/Baa2 0.0% 0.525% 0.225%
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BBB-/Baa3 0.0% 0.625% 0.250%
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less than BBB-/Baa3 0.0% 0.950% 0.300%
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; provided, that, for purposes of the foregoing, (i) if either Xxxxx'x or S&P
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shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then the
Applicable Rate shall be determined based on the rating for the Index Debt by
the other such agency, (ii) if the ratings established or deemed to have been
established by Xxxxx'x and S&P for the Index Debt shall fall within different
categories, the Applicable Rate shall be based on the higher of the two ratings
unless one of the two ratings is two or more categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the category
next below that of the higher of the two ratings; (iii) if the ratings
established or deemed to have been established by Xxxxx'x and S&P for the
Index Debt shall be changed (other than as a result of a change in the rating
system of Xxxxx'x or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency, irrespective of
when notice of such change shall have been furnished by the Borrower to the
Administrative Agent and the Lenders pursuant to Section 5.01(f) hereof or
otherwise and (iv) if at any time after a Ratings Event, neither Xxxxx'x or S&P
shall have in effect a rating for the Index Debt, then the Applicable Rate shall
be determined on the basis of the table set forth in clause (i) above. Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
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"Assessment Rate" means, for any day, the annual assessment rate in
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effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
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any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Xxxx
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Closing Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
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multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means (i) at all times prior to the Company Closing Date,
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Xxxx, and (ii) at all times on and after the Company Closing Date, the Company.
"Borrowing" means (a) Revolving Loans of the same Type, made,
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converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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the term "Business Day" shall also exclude any day on which banks are not open
------------
for dealings in dollar deposits in the London interbank market.
5
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any Person means any capital stock or other equity
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interests of such Person, regardless of class or designation, and all warrants,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 51% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b)
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reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $125,000,000.
"Company Closing" means the satisfaction of the conditions specified
---------------
in Section 4.02.
"Company Closing Date" means the date after the Xxxx Closing Date on
--------------------
which all of the conditions specified in Section 4.02 have been satisfied.
"Competitive Bid" means an offer by a Lender to make a Competitive
---------------
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
--------------------
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
-----------------------
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
----------------
"Consolidated EBITDA" means, for any period, Consolidated Net Income
-------------------
for such period plus, without duplication and to the extent reflected as a
----
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount with respect to Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business),
and (f) any other non-cash charges, and minus, to the extent included in the
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statement of such Consolidated Net Income for such period, the sum of (a)
interest income, (b) any extraordinary income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis. For the purposes of calculating
Consolidated EBITDA for any Reference Period pursuant to any determination of
the Consolidated Leverage Ratio or Consolidated Interest Coverage Ratio, if
during such Reference Period the Borrower or any Subsidiary shall have made a
Permitted Acquisition or refinanced any Indebtedness, Consolidated EBITDA for
such Reference Period shall be calculated after giving pro
---
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forma effect thereto and any Indebtedness incurred, assumed or refinanced in
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connection therewith as if such Permitted Acquisition or refinancing occurred
and such Indebtedness had been incurred, assumed or refinanced on the first day
of such Reference Period.
"Consolidated Interest Coverage Ratio" means for any period, the ratio
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of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense
for such period; provided that interest on an aggregate principal amount of the
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Louisiana IDB not to exceed $1,000,000 shall for all purposes of calculating the
Consolidated Interest Coverage Ratio be excluded from Consolidated Interest
Expense.
"Consolidated Interest Expense" means, for any period, total interest
-----------------------------
expense (including that attributable to capitalized lease obligations) of the
Borrower and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries (including all commission,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedging Agreements in respect
of such Indebtedness to the extent such net costs are allocable to such period
in accordance with GAAP). For the purposes of calculating Consolidated Interest
Expense for any Reference Period pursuant to any determination of the
Consolidated Interest Coverage Ratio, if during such Reference Period the
Borrower or any Subsidiary shall have made a Permitted Acquisition or refinanced
any Indebtedness, Consolidated Interest Expense for such Reference Period shall
be calculated after giving pro forma effect thereto and any Indebtedness
--- -----
incurred, assumed or refinanced in connection therewith as if such Permitted
Acquisition or refinancing occurred and such Indebtedness had been incurred,
assumed or refinanced on the first day of such Reference Period.
"Consolidated Leverage Ratio" means, as at the last day of any period,
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the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period; provided that (i) the Louisiana IDB in an aggregate principal
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amount not to exceed $1,000,000 shall for all purposes of calculating the
Consolidated Leverage Ratio be excluded from Consolidated Total Debt and (ii)
for purposes of calculating the Applicable Rate, the Consolidated Leverage Ratio
shall at all times be calculated with respect to the Company and its
Subsidiaries.
"Consolidated Net Income" means, for any period, the consolidated net
-----------------------
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
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excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such
8
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or any law applicable to such
Subsidiary.
"Consolidated Total Debt" means, at any date, the aggregate principal
-----------------------
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Credit Events" means the execution, delivery and performance by the
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Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
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environmental matters disclosed in Schedule 3.06.
"Disposition" means with respect to any property, any sale, lease,
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sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
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"Distribution" means the distribution by Xxxx of 100% of the
------------
outstanding common stock of the Company to Olin's shareholders.
"Distribution Agreement" means the Distribution Agreement to be dated
----------------------
on or about February 8, 1999 between Xxxx and Arch, substantially in the form of
Exhibit 2 to the Form 10.
"Documentation Agent" means Wachovia Bank of Georgia, N.A., in its
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capacity as documentation agent for the Lenders hereunder.
"dollars" or "$" refers to lawful money of the United States of
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America.
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"Effective Date" means the date on which the conditions specified in
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Section 4.01 (with respect to Xxxx) or 4.02 (with respect to the Company), as
applicable, are satisfied (or waived in accordance with Section 9.02).
"Environmental Claim" means any notice of violation, claim, suit,
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demand, abatement order or other order or direction (conditional or otherwise)
by any Governmental Authority or any Person for any damage, including personal
injury (including sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential damages, damage to
the environment, nuisance, pollution, contamination or other adverse effects on
the environment, human health, or natural resources, or for fines, penalties,
restrictions or injunctive relief resulting from or based upon (a) the
occurrence or existence of a Release or substantial threat of a material Release
(whether sudden or non-sudden or accidental or non-accidental) of, or exposure
to, any Hazardous Materials in, into or onto the environment at, in, by, from or
related to any real estate owned, leased or operated at any time by Borrower or
any of its Subsidiaries (the "Premises"), (b) the use, handling, generation,
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transportation, storage, treatment or disposal of Hazardous Materials in
connection with the operation of any Premises, or (c) the violation, or alleged
violation, of any Environmental Law connected with Borrower's operations or
any Premises.
"Environmental Laws" means all laws, rules, regulations, codes,
------------------
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Environmental Lien" means a Lien in favor of any Governmental
------------------
Authority for (i) any liability under Environmental Laws or regulations, or (ii)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of Hazardous Materials into the
environment.
10
"Environmental Permits" means all permits, licenses, certificates,
---------------------
registrations and approvals of Governmental Authorities required by
Environmental Laws and necessary for the business of Borrower or a Subsidiary of
Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is
11
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
----------
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
---------------
Rate.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Form 10" means the Form 10 of the Company filed with the Securities
-------
and Exchange Commission on January 21, 1999.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and
12
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature, in each case to the extent
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account
13
party in respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Index Debt" means senior, unsecured, long-term indebtedness for
----------
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated December 1998 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
--------
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
14
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the
term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time
15
for any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing
---------
for such Interest Period shall be the rate (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means, collectively, this Agreement, and all other
--------------
agreements, instruments and documents executed in connection herewith and
therewith, in each case as the same may be amended, restated, modified or
otherwise supplemented from time to time.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Louisiana IDB" means the Industrial Development Board of the Parish
-------------
of Calcasieu, Inc. (Louisiana) 6% Industrial Development Revenue Bonds (Xxxx
Corporation Project) due March 1, 2008.
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations, property or financial condition, of the Borrower
and the Subsidiaries taken as a whole or (b) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Lenders or the
Administrative Agent thereunder.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $5,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging
16
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means the earlier of (i) January 27, 2004 and (ii)
-------------
February 28, 1999 if the Company Closing Date has not occurred as of such date.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Proceeds" means the gross proceeds received by or on behalf of
------------
the Borrower or any of its Subsidiaries in respect of any Prepayment Event, less
----
the sum of, without duplication, (i) all taxes (other than income taxes) payable
by the Borrower or any of its Subsidiaries in connection with such Prepayment
Event and the Borrower's good faith estimate of income taxes payable in
connection therewith, (ii) the amount of any reserves established in accordance
with GAAP against any liabilities associated with the asset Disposed of;
provided that any subsequent reduction in such reserves (other than in
-------- ----
connection with the payment of any such liability) shall be deemed to be Net
Proceeds of a Prepayment Event occurring on the date of such reduction, (iii)
the amount of any Indebtedness secured by the asset Disposed of and required to
be, and in fact, repaid with the proceeds of such Disposition and (iv)
reasonable and customary fees, commissions and expenses and other costs paid by
the Borrower or any of its Subsidiaries in connection with such Disposition.
"Xxxx Closing Date" means the date on which all of the conditions
-----------------
specified in Section 4.01 have been satisfied.
"Xxxx Credit Agreement" means the Credit Agreement dated as of
---------------------
September 30, 1993 among Xxxx and the lenders party thereto, as in effect on the
date hereof and without giving effect to any extension, restatement, amendment,
modification or supplement thereof or waiver or consent with respect thereto
dated after the date hereof.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
17
"Permitted Accounts Receivable Securitization" means one or more
--------------------------------------------
receivables financing programs providing for (i) the sale or contribution of
Accounts Receivable by the Borrower or its Subsidiaries to a Receivables
Subsidiary in a transaction or series of transactions purporting to be sales
(and treated as sales for GAAP purposes), and (ii) the sale, transfer,
conveyance, lien or pledge of, or granting a security interest in, such Accounts
Receivables by such Receivables Subsidiary to any other Person, in each case,
without recourse to the Borrower and its Subsidiaries (other than the
Receivables Subsidiaries).
"Permitted Acquisition" means, any acquisition by the Borrower or any
---------------------
of its Subsidiaries of all of the capital stock of, or all or a substantial part
of the assets of, or of a business unit (including a complete product line) or
division of, any Person; provided that (a) the Administrative Agent shall have
--------
been given at least five Business Days' advance written notice of such
acquisition, (b) the Borrower shall be in compliance, on a pro forma basis after
--- -----
giving effect to such acquisition, with the covenants contained in Section 6.12,
in each case recomputed as at the last day of the most recently ended Reference
Period of the Borrower for which the relevant information is available as if
such acquisition had occurred on the first day of each relevant period for
testing such compliance, (c) no Default or Event of Default shall have occurred
and be continuing, or would occur after giving effect to such acquisition, (d)
substantially all of such property acquired shall constitute assets of the type
historically used in the business conducted by the Borrower on the date hereof
or reasonable extensions thereof, and (e) any such acquisition for consideration
in excess of $10,000,000 shall have been approved by the Board of Directors or
comparable governing body of the relevant Person.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, and to secure letters of credit in respect
thereof, in each case in the ordinary course of business;
18
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Event" means, in any fiscal year of the Borrower, any
----------------
Disposition by the Borrower or any of its Subsidiaries of any assets pursuant to
Section 6.07(f) the fair market value of which singly, or when aggregated with
all such Dispositions by the Borrower or any of its Subsidiaries during such
fiscal year, exceeds $50,000,000, but only to the extent that the Net Proceeds
thereof in excess of $50,000,000 are not used within 365 days of the relevant
Disposition to (i) acquire assets related to those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or that
are reasonably related thereto or (ii) repay the Loans hereunder or under the
364-Day Credit Facility.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Ratings Event" the date upon which the Company's Index Debt shall
-------------
have been rated by either S&P or Moody's.
"Receivables Subsidiary" means any special purpose, bankruptcy remote
----------------------
wholly-owned subsidiary of the Borrower formed for the sole and exclusive
purpose of
19
engaging in activities in connection with the financing of Accounts Receivable
in connection with and pursuant to a Permitted Accounts Receivable
Securitization.
"Reference Period" means any period of four consecutive fiscal
----------------
quarters.
"Register" has the meaning set forth in Section 9.04.
--------
"Regulations" means all Regulations of the Board as in effect from
-----------
time to time.
"Regulation U" means Regulation U of the Board as in effect from time
------------
to time.
"Regulation X" means Regulation X of the Board as in effect from time
------------
to time.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means release, spill, emission, leaking, pumping, pouring,
-------
emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape,
leaching, or migration into the indoor or outdoor environment or into or out of
any property of Borrower or its Subsidiaries, or at any other location to which
Borrower or any Subsidiary has transported or arranged for the transportation of
any Hazardous Materials, including the movement of Hazardous Materials through
or in the air, soil, surface water, groundwater or property of Borrower or its
Subsidiaries or at any other location, including any location to which Borrower
or any Subsidiary has transported or arranged for the transportation of any
Hazardous Materials.
"Remedial Action" means actions required to (i) clean up, remove,
---------------
treat or in any other way address Hazardous Materials in the indoor or outdoor
environment; (ii) prevent or minimize the Release or substantial threat of a
material Release of Hazardous Materials so they do not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform pre-remedial or post-remedial studies and
investigations and post-remedial monitoring and care.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
--------
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be
20
included in their respective Revolving Credit Exposures in determining the
Required Lenders.
"Responsible Officer" means the chief executive officer, president any
-------------------
vice-president or any Financial Officer of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
"S&P" means Standard & Poor's Ratings Group.
---
"Spin-Off" means the transfer of substantially all of the specialty
--------
chemical businesses of Xxxx and its Subsidiaries to the Company and the
Distribution, substantially in the manner described in the Form 10.
"Spin-Off Documents" means, collectively, the Distribution Agreement
------------------
and all "Ancillary Agreements" (as such term is defined in the Distribution
Agreement).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months
and (b) with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
21
"Subordinated Indebtedness" means all Indebtedness of the Borrower for
-------------------------
money borrowed of which all payments thereunder are subordinate and junior in
right of payment to the prior payment in full in cash of all obligations now or
hereafter existing under this Agreement and the 364-Day Facility.
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Con trolled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
----------------
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
--------------
"Syndication Agent" means Bank of America, National Trust and Savings
-----------------
Association, in its capacity as syndication agent for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364-Day Facility" means the Credit Agreement dated as of the date
----------------
hereof among Xxxx, the Company, the lenders and agents from time to time party
thereto and The Chase Manhattan Bank, as administrative agent, as the same may
be amended, restated, modified or otherwise supplemented from time to time.
"Three-Month Secondary CD Rate" means, for any day, the secondary
-----------------------------
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board
22
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day) or, if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if such day is
not a Business Day, on the next preceding Business Day) by the Administrative
Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
"Transactions" shall mean and include each of the Credit Events
------------
occurring on the Xxxx Closing Date and the Company Closing Date and the Spin-
Off.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes
--------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
-----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
----- -----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
-----
Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be con strued to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to
23
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement
and (e) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
-----------
SECTION 2.01 Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Notwithstanding any other provision of this Agreement, the
aggregate principal amount of Loans available to be borrowed by Xxxx prior to
the Company Closing Date will not exceed $75,000,000.
SECTION 2.02 Loans and Borrowings.
--------------------
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.04. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments and Competitive Bids of
--------
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
24
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
--------
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
--------
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e). Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $500,000 and not less
than $1,000,000. Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be more than a total
--------
of ten (10) Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings. To request a
---------------------------------
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to
--------
finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
25
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified,
then the requested Revolving Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure.
-------------------------
(a) Subject to the terms and conditions set forth herein, from time to
time during the Availability Period the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that the sum of the total Revolving Credit
--------
Exposures plus the aggregate principal amount of outstanding Competitive Loans
at any time shall not exceed the total Commitments. To request Competitive
Bids, the Borrower shall notify the Administrative Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, four Business Days before the date of the proposed Borrowing
and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing; provided
--------
that the Borrower may submit up to (but not more than) three Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Competitive Bid Request shall
specify the following information in compliance with Section 2.02:
26
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competi tive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent
27
by telephone, confirmed by telecopy in a form approved by the Administrative
Agent, whether and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurodollar Competitive Borrowing, not later
than 10:30 a.m., New York City time, three Business Days before the date of the
proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided that (i) the failure of the Borrower to give
--------
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if
----------------
a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05 Swingline Loans.
---------------
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not
28
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding
the total Commitments; provided that the Swingline Lender shall not be required
--------
to make a Swingline Loan to refinance an outstanding Swingline Loan and provided
--------
further that the Swingline Lender shall not be permitted to make a Swingline
-------
Loan upon the occurrence and during the continuance of a Default. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan.
The Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
----------------
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and
29
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.06 Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein,
-------
the Borrower may request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $25,000,000
and (ii) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans shall not exceed the total
Commitments.
30
(c) Expiration Date. Each Letter of Credit shall expire at or prior
---------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date; provided, that any Letter
-------- ----
of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
-------------
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that
--------
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accor dance with Section 2.03 or 2.05 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan; provided further that if such payment is not financed with an ABR
-------- -------
Revolving Borrowing or Swingline Loan, the
31
Administrative Agent will extend an ABR Revolving Borrowing in the amount of
such LC Disbursement. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
------- --------
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of ABR Revolving Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the
32
Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Dis bursement when
--------
due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
--------------------------------
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be
33
deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require. After
the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
-----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 51% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
--------
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by
the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank and pro-rata
to any Lender that has funded participations therein for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.07 Funding of Borrowings.
---------------------
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; provided
--------
that Swingline Loans shall be
34
made as provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing Request
or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08 Interest Elections.
------------------
(a) Each Revolving Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Revolving Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Competitive Borrowings or Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a
35
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be speci fied for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
36
SECTION 2.09 Termination and Reduction of Commitments.
----------------------------------------
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
--------
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt.
------------------------------------
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date, (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan
and (iii) to the Swingline Lender or, subject to Section 2.05(c), the
Administrative Agent, the then unpaid principal amount of each Swingline Loan on
the earlier of the Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
37
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11 Prepayment of Loans.
-------------------
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the Borrower shall
--------
not have the right to prepay any Competitive Loan without the prior consent of
the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
--------
in connection with a conditional notice of termination of the Commitments as
38
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13
and any payment required under Section 2.16.
(c) The Borrower shall on the date, if any, specified in Section
6.07(f) repay Loans in the amounts and otherwise in all respects as provided in
such Section.
SECTION 2.12 Fees.
----
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable Rate
on the daily amount of the Commitment of such Lender (whether used or unused)
during the period from and including the date hereof (or, if later, the date on
which such Lender is committed hereunder) to but excluding the date on which
such Commitment terminates; provided that, if such Lender continues to have any
--------
Revolving Credit Exposure after its Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued facility fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any facility fees accruing after the date on which
--------
the Commitments terminate shall be payable on demand. All facility fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate as interest on
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date
39
to but excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
--------
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13 Interest.
--------
(a) The Loans comprising each ABR Borrowing (including each Swingline
Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
(i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any
40
other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
--------
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar
41
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by the Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that (A) if the circumstances giving rise to such
--------
notice do not affect all the Lenders, then requests by the Borrower for
Eurodollar Competitive Borrowings may be made to Lenders that are not affected
thereby and (B) if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement, Eurodollar
Loans or Fixed Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compen sate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
42
or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
----------------
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16 Break Funding Payments. In the event of (a) the
----------------------
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(b) and is revoked in accordance there with), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of
43
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17 Taxes.
-----
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
--------
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. The Administrative Agent, each Lender
and the Issuing Bank will, at the Borrower's expense, cooperate in good faith
with the Borrower in any contest as to whether or not such Indemnified Taxes,
Other Taxes, penalties, interest or expenses were correctly or legally imposed
or asserted in the event such Indemnified Taxes, Other Taxes, penalties,
interest or expenses were in the good faith judgment of the Administrative
Agent, such Lender or the Issuing Bank, as the
44
case may be, not legal or not correctly asserted. If in connection with such
contest such Indemnified Taxes, Other Taxes, penalties, interest or expenses are
refunded to the Administrative Agent, such Lender or the Issuing Bank, the
Administrative Agent, such Lender or the Issuing Bank will pay such refund to
the Borrower to the extent the Administrative Agent, such Lender or the Issuing
Bank, determines in its sole discretion that such refund is attributable to any
Indemnified Taxes, Other Taxes, penalties, interest or expenses paid by the
Borrower and to the extent the Borrower has previously indemnified the
Administrative Agent, such Lender or the Issuing Bank therefor pursuant to this
Section 2.17, net of expenses and without interest except any interest (net of
taxes) included in such refund. The Borrower shall return such refund (together
with any taxes, penalties or other charges) in the event the Administrative
Agent, such Lender or the Issuing Bank is required to repay such refund.
Notwithstanding the foregoing, nothing in this Section 2.17 shall be construed
to (i) entitle the Borrower or any other Persons to any information determined
by the Administrative Agent, any Lender or the Issuing Bank, in each case, in
its sole discretion, to be confidential or proprietary information of the
Administrative Agent, any Lender or the Issuing Bank, to any tax or financial
information of the Administrative Agent, any Lender or the Issuing Bank or to
inspect or review any books and records of the Administrative Agent, any Lender
or the Issuing Bank, or (ii) interfere with the rights of the Administrative
Agent, any Lender or the Issuing Bank to conduct its fiscal or tax affairs in
such matter as it deems fit. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
45
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Set-offs.
--------
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, letter of credit cash collateral obligations pursuant to
Section 2.06(j), interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties and (iii) third, to fund
letter of credit cash collateral obligations pursuant to Section 2.06(j).
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans then due and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations
46
in LC Disbursements and Swingline Loans; provided that (i) if any such
--------
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices,
47
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15 or 2.17, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
--------
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans) and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
48
SECTION 3.02 Authorization; Enforceability. The Transactions
-----------------------------
affecting the Borrower are within the Borrower's corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder action.
This Agree ment has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions
------------------------------------
affecting the Borrower (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any Contractual Obligation or applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Xxxx has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal years ended December 31, 1996 and December 31, 1997
reported on and audited by KPMG Peat Marwick LLP, independent public
accountants, and (ii) as of and for the fiscal quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998, certified by its chief financial officer.
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal years ended December 31, 1996 and December 31, 1997, reported on
and audited by KPMG Peat Marwick LLP, independent public accoun tants, and (ii)
as of and for the nine-month period ended September 30, 1998, certified by its
chief financial officer. All of the foregoing financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) All financial statements delivered pursuant to clause (a) above,
including the related schedules and notes thereto, have been prepared in
accordance with
49
GAAP applied consistently throughout the periods involved. The Borrower and its
Subsidiaries do not have any material Guarantee obligations, contingent
liabilities and liabilities for Taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this Section 3.04.
(c) Since September 30, 1998, there has been no event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect on the Borrower and its Subsidiaries.
SECTION 3.05 Properties.
----------
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation and Environmental Matters.
------------------------------------
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) the reasonably anticipated outcome of which would, individually
or in the aggregate, result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any Environmental Permit, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any
Environmental Claim or (iv) knows of any basis for any Environmental
Liability.
50
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.
SECTION 3.07 Compliance with Laws and Agreements. Each of the
-----------------------------------
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3..08 Investment and Holding Company Status. Neither the
-------------------------------------
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09 Taxes. Each of the Borrower and its Subsidiaries has
-----
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Xxxx dards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $10,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11 Disclosure. The Borrower has disclosed to the Lenders
----------
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum, the Form 10 nor any
of the other reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or
51
any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
--------
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12 Year 2000. The Company's disclosure in the Form 10,
---------
under the caption "Management's Discussion and Analysis of Financial Condition
and Results of Operations - - Year 2000 Computer Systems", does not contain any
material misstatement of fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 3.13 No Default. Neither the Borrower nor any of its
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.14 Federal Regulations. No part of the proceeds of any
-------------------
Loans will be used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect that would cause the Loans to be in
violation of the provisions of the Regulations of the Board. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of Form FR G-3 or Form FR U-1, as applicable,
referred to in Regulation U.
SECTION 3.15 Labor Matters. Except as, in the aggregate, could not
-------------
reasonably be expected to have a Material Adverse Effect, there are no strikes
or other labor disputes against the Company or any of its Subsidiaries pending
or, to the knowledge of the Company, threatened.
SECTION 3.16 Options. There are no outstanding subscriptions,
-------
options, warrants, calls, rights or other agreements or commitments (other than
(i) stock options granted to employees or directors and directors' qualifying
shares, and including options granted to employees of Xxxx and the Company as
part of the Spin-Off and (ii) customary shareholders rights plans in effect from
time to time) of any nature relating to any Capital Stock of the Borrower or any
Subsidiary, except as created by the Loan Documents.
52
SECTION 3.17 Insurance. The Borrower has for itself and its
---------
Subsidiaries insurance from financially sound and reputable insurers or
maintains with such insurers valid and collectible insurance with respect to
their respective assets and businesses which is required to be obtained and
maintained by it pursuant to Section 5.05 hereof.
ARTICLE IV
Conditions
----------
SECTION 4.01 Loans to Xxxx. The obligations of the Lenders to
-------------
make Loans to Xxxx shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Cravath, Swaine & Xxxxx, counsel for Xxxx and the
Company, (ii) Hunton and Xxxxxxxx, special Virginia counsel for Xxxx and the
Company, and (iii) the General Counsel for Xxxx and the Company, covering the
matters set forth in Exhibit B, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Required Lenders shall
reasonably request. Each of Xxxx and the Company hereby requests each of such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of Xxxx and the
Company, the authorization of the Transactions and any other legal matters
relating to Xxxx and the Company, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agent and its counsel.
(d) All governmental and third party approvals necessary in connection
with the Transaction, the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse conditions on the
Transaction or the financing contemplated hereby.
53
(e) The Administrative Agent shall have received a certificate, dated
the Effective Date, with respect to Xxxx, and signed by the President, a Vice
President or a Financial Officer of Xxxx, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.03, as to Xxxx.
(f) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, as to Xxxx,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received, and shall be
satisfied with such financial, business and other information regarding the
Company and its Subsidiaries relating to the Spin-Off as it shall have
reasonably requested, including, without limitation, all matters related to
insurance, ERISA, labor, intellectual property, taxes and environmental
liabilities relating to the Company and its subsidiaries as it may have
requested; it being understood that all of the matters described with
particularity in the Form 10 with respect to the Spin-Off are, to the extent,
and only to the extent, described therein, satisfactory to the Administrative
Agent.
The Administrative Agent shall notify Xxxx and the Lenders of the Xxxx Closing
Date, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, the obligations of the Lenders to make Loans to Xxxx shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
February 28, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02 Loans to the Company. The obligations of the Lenders
--------------------
to make Loans to the Company and of the Issuing Bank to issue Letters of Credit
hereunder for the account of the Company shall not become effective until the
date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The Spin-Off (other than the Distribution) shall have occurred.
(b) The Administrative Agent shall have received a certificate, dated
the Effective Date with respect to the Company and signed by the President, a
Vice President or a Financial Officer of the Company, confirming compliance with
the conditions set forth in paragraph (a) of Section 4.03.
(c) At least one Business Day shall have elapsed since the last
borrowing (if any) by Xxxx hereunder.
Upon completion of the conditions set forth in paragraphs (a), (b) and (c) of
this Section 4.02, all rights, liabilities and obligations of Xxxx under this
Agreement will automatically,
54
and without further act of the parties hereto, be assigned and delegated to the
Company, and the Company will automatically assume all such rights, liabilities
and obligations in full, including without limitation the obligation to pay the
principal of and all interest on any outstanding Loans hereunder, all fees and
all other amounts from time to time owing hereunder, whether such Loans shall
have been made, or such interest, fees or other amounts shall have accrued,
prior to or after the date of such assumption and (ii) Xxxx will be
automatically released from any and all obligations, claims and liabilities
whatsoever, whether paid or unpaid, accrued or unaccrued, known or unknown,
fixed or contingent, or otherwise, under this Agreement or arising in connection
herewith and on any Loans hereunder, and from and after such time the Company
will be the "Borrower" and sole obligor hereunder.
The Administrative Agent shall notify the Lenders of the Company Closing Date,
and such notice shall be conclusive and binding.
SECTION 4.03 Each Credit Event. The obligation of each Lender to
-----------------
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement (including, without limitation, those set forth in Sections
3.04(c) and 3.06) shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amend ment, renewal or extension of such
Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Subject to Section 6.13, until the Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
55
SECTION 5.01 Financial Statements; Ratings Change and Other
----------------------------------------------
Information. The Borrower will furnish to the Administrative Agent and each
-----------
Lender:
(a) within 90 days after the end of each fiscal year of the Borrower
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by KPMG Peat Marwick LLP or other independent public accountants
of recognized national standing (without a "going concern" or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under (i)
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(A) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (B) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.12(a) and (b), and (C) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (ii) clause (a) above, a
certificate of a Responsible Officer of the Borrower containing a list of
Subsidiaries of the Borrower as of such date, along with a list of each new
Subsidiary acquired or formed, and each Subsidiary dissolved or liquidated,
since the last such certification;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
56
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(f) promptly after Xxxxx'x or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTIOJN 5.02 Notices of Material Events. The Borrower will furnish
--------------------------
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Subsidiaries, the reasonably anticipated outcome of which
would result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000; and
(d) the commencement of, or any material development in, any action,
suit, proceeding or investigation affecting the Borrower or any of its
Subsidiaries or any of their respective properties before any arbitrator or
Governmental Authority, in which the amount of any claim, damage, penalty or
fine asserted against the Borrower or its Subsidiaries that the Borrower
reasonably determines is not covered by insurance is $15,000,000 or more;
(e) the occurrence of one or more of the following, to the extent that
any of the following, if adversely determined, could reasonably be expected to
result in liability to the Borrower or any of its Subsidiaries in excess of
$7,500,000 or a fine or penalty in excess of $2,500,000: (i) written notice,
claim or request for information to the effect that the Borrower or any of its
Subsidiaries is or may be liable in any material respect to any Person as a
result of the presence of or the Release or substantial threat of a material
57
Release of any Hazardous Materials into the environment; (ii) written notice
that the Borrower or any of its Subsidiaries is subject to investigation by any
Governmental Authority evaluating whether any Remedial Action is needed to
respond to the presence or to the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (iii) written notice
that any property, whether owned or leased by, or operated on behalf of, the
Borrower or any of its Subsidiaries is subject to a material Environmental Lien;
(iv) written notice of violation to the Borrower or any of its Subsidiaries of
any Environmental Laws or Environmental Permits; or (v) commencement or written
threat of any judicial or administrative proceeding alleging a violation of any
Environmental Laws or Environmental Permits;
(f) upon written request by Administrative Agent, a report providing
an update of the status of each environmental, health or safety compliance,
hazard or liability issue identified in any notice or report required pursuant
to clause (e) above and any other environmental, health and safety compliance
obligation, remedial obligation or liability that could reasonably be expected
to have a Material Adverse Effect (all such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or Remedial
Action and the Borrower's or such Subsidiary's response thereto);
(g) prompt notice of any event or condition that would cause the
representation contained in Section 3.12 to be false, and such other information
regarding the year 2000 and the effect thereof on the Borrower as the
Administrative Agent shall reasonably request; and
(h) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03 Existence; Conduct of Business. The Borrower will,
------------------------------
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
--------
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
58
SECTIOIN 5.04 Payment of Obligations. The Borrower will, and will
----------------------
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05 Maintenance of Properties; Insurance. The Borrower
------------------------------------
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06 Books and Records; Inspection Rights. The Borrower
------------------------------------
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independ ent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07 Compliance with Laws. The Borrower will, and will
--------------------
cause each of its Subsidiaries to, comply with all Contractual Obligations and
laws, rules, regula tions and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08 Use of Proceeds and Letters of Credit. The proceeds
-------------------------------------
of the Loans will be used only for general corporate purposes, including
negotiated acquisitions. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X. Letters of
Credit will be issued only to support ordinary course business opera tions.
SECTION 5.09 Environmental Laws. The Borrower will, and will cause
------------------
each of its Subsidiaries to (a) comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any, with,
all applicable Environmental Laws, and obtain and comply in all material
respects with and maintain, and ensure that all tenants and subtenants obtain
and comply in all material respects with and maintain, any and
59
all licenses, approvals, notifications, registrations or permits required by
applicable Environ mental Laws and (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of the Governmental Authorities regarding
Environmental Laws.
ARTICLE VI
Negative Covenants
------------------
Subject to Section 6.13, until the Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness. The Borrower will not permit any
------------
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(b) Indebtedness to the Borrower or any other Subsidiary;
(c) Guarantees of Indebtedness of the Borrower or any other
Subsidiary;
(d) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations
and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that such
--------
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement;
(e) Indebtedness as an account party in respect of trade letters of
credit;
(f) Indebtedness of Receivables Subsidiaries arising pursuant to
Permitted Accounts Receivable Securitizations in an aggregate principal amount
not to exceed $100,000,000; and
60
(g) other Indebtedness in an aggregate principal amount not exceeding
$50,000,000 at any time outstanding.
SECTION 6.02 Liens. The Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary set forth in Schedule 6.02; provided that (i) such Lien shall not
--------
apply to any other property or asset of the Borrower or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; provided that (i) such Lien
--------
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary , as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security interests
--------
secure Indebtedness permitted by clause (d) of Section 6.01, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 80% of the
cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of
the Borrower or any Subsidiary;
(e) Liens on Accounts Receivable and other assets of any Receivables
Subsidiary arising in connection with any Permitted Accounts Receivable
Securitization; and
(f) Liens securing other Indebtedness of the Borrower and its
subsidiaries not expressly permitted by clauses (a) through (e) above; provided
--------
that the aggregate amount of Indebtedness secured by Liens permitted by this
clause (f) does not at any time exceed $30,000,000 in the aggregate.
61
SECTION 6.03 Fundamental Changes. The Borrower will not, and will not
-------------------
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Person
other than the Borrower may merge into any Subsidiary in a transaction in which
the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer,
lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary, and the Borrower may sell, transfer, lease or otherwise dispose of
its assets to any Subsidiary, (iv) Dispositions otherwise permitted by Section
6.07 shall be permitted and (v) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders.
SECTION 6.04 Hedging Agreements. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.05 Restricted Payments. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment; provided that the Borrower and
-------- ----
its Subsidiaries may make any Restricted Payment which, together with all other
Restricted Payments made by all Persons pursuant to this proviso since the date
hereof would not exceed the sum of (x) $65,000,000 plus (y) 50% of the
cumulative Consolidated Net Income of the Company for the period (taken as one
accounting period) since the date hereof through the last day of the fiscal
quarter for which financial statements have been delivered pursuant to Section
5.01(a), and provided further that (i) the Borrower may declare and pay
-------- -------
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (ii) Subsidiaries may declare and pay dividends ratably
with respect to their capital stock, (iii) the Borrower may make Restricted
Payments pursuant to and in accordance with stock option plans or other benefit
plans for management or employees of the Borrower and its Subsidiaries and (iv)
the Distribution shall be permitted, so long as the Company Closing shall have
previously occurred.
62
SECTION 6.06 Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates except (a) at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and its Subsidiaries not involving any other Affiliate, (c) any
Restricted Payment permitted by Section 6.05 and (d) the transactions specified
in the Spin-Off Documents.
SECTION 6.07 Disposition of Property. The Borrower will not, and will
-----------------------
not permit any of its Subsidiaries to, directly or indirectly dispose of any of
its property, whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 6.03;
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary;
(e) sales of Accounts Receivable pursuant to a Permitted Accounts
Receivable Securitization; provided that the aggregate principal amount of such
-------- ----
financings shall not at any time exceed $100,000,000; and
(f) any other Dispositions by such Persons of property for cash or
cash equivalents or other readily marketable publicly traded securities at not
less than its fair market value or for other property of an equal or greater
value than the property Disposed of (including, without limitation, joint
venture interests, seller's notes or other securities), as determined in good
faith by the Board of Directors of the Borrower or a duly authorized committee
thereof at the time of such Disposition; provided that on each occasion that a
-------- ----
Prepayment Event occurs, the Borrower will on the date of such Prepayment
Event apply an amount equal to 100% of the Net Proceeds thereof in excess of
$50,000,000 to prepay the Loans outstanding hereunder and under the 364-Day
Facility, ratably in accordance with the respective principal amounts
outstanding hereunder and under the 364-Day Facility.
63
SECTION 6.08 Payments and Modifications of Certain Debt Instruments.
------------------------------------------------------
The Borrower will not, and will not permit any of its Subsidiaries to, directly
or indirectly, (a) make or offer to make any optional payment, prepayment,
repurchase or redemption of or otherwise optionally defease or segregate funds
with respect to any Subordinated Indebtedness (other than interest payments
expressly required by the terms thereof), (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of any other Subordinated Indebtedness (other than
any such amendment, modification, waiver or other change that (i) would extend
the maturity or reduce the amount of any payment of principal thereof or reduce
the rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee or that otherwise would not adversely
affect the interests of the Lenders in any manner).
SECTION 6.09 Sales and Leasebacks. The Borrower will not, and will
--------------------
not permit any of its Subsidiaries to, enter into any arrangement providing for
the leasing to the Borrower, or any of its Subsidiaries of real or personal
property that has been or is to be (a) sold or transferred by the Borrower or
any of its Subsidiaries or (b) constructed or acquired by a third party in
anticipation of a program of leasing to the Borrower, or any of its Subsidiaries
(any such transaction, a "Sale-Leaseback"); provided that Sale-Leasebacks by all
-------------- -------- ----
such Persons of property having a fair market value not to exceed $50,000,000 in
the aggregate since the date hereof shall be permitted.
SECTION 6.10 Changes in Fiscal Periods. The Borrower will not, and
-------------------------
will not permit any of its Subsidiaries to, directly or indirectly permit the
fiscal year of the Borrower to end on a day other than December 31.
SECTION 6.11 Lines of Business. The Borrower will not, and will not
-----------------
permit any of its Subsidiaries to, directly or indirectly enter into any
business, either directly or through any Subsidiary, except for those businesses
in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement or that are reasonably related thereto.
SECTION 6.12 Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. The Borrower will not permit the
---------------------------
Consolidated Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower to exceed 3.5:1.0.
(b) Consolidated Interest Coverage Ratio. The Borrower will not
------------------------------------
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrower to be less than 3.0:1.0.
64
SECTION 6.13 Xxxx Affirmative and Negative Covenants. Notwithstanding
---------------------------------------
Article V and the other Sections of this Article VI, so long as, and only so
long as, Xxxx is the Borrower (that is, prior to the Company Closing Date) under
this Agreement, the provisions of Article V hereof shall be the same as section
5.01 of the Xxxx Credit Agreement and the provisions of the other Sections of
this Article VI shall be the same as section 5.02 of the Xxxx Credit Agreement,
such sections of the Xxxx Credit Agreement being set forth in Exhibit C and
incorporated herein by reference, and the capitalized terms used in Exhibit C
shall have the same meaning for purposes of this Section 6.13 as in the Xxxx
Credit Agreement; provided that the terms "Borrower"and "Agreement" in such
-------- ----
Exhibit C shall mean the Borrower and this Agreement, as used, respectively, in
this Agreement; the term "Advance" in such Exhibit C shall mean the Loans and
issuances of Letters of Credit as used hereunder; "Lenders" as used in Exhibit C
shall mean the Lenders and Issuing Bank as used hereunder; "Majority Lenders" as
used in Exhibit C shall mean the Required Lenders hereunder; and the words
"herein", "hereof" and "hereunder", and words of similar import, used in such
Exhibit C shall be construed to refer to this Agreement.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five
Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made; provided that any such representation or warranty made or deemed
-------- ----
made by or on behalf of Xxxx or any Subsidiary of Xxxx that is not a Subsidiary
of the Company shall not be the basis for an Event of Default subsequent to the
Company Closing Date (without limiting the consequences of such representation
or warranty to any other representations, covenants or provisions of this
Agreement);
65
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebted ness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply to secured
--------
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
66
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 60 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent, Syndication Agent and Documentation Agent
-------------------------------------------------------------------
In order to expedite the transactions contemplated by this Agreement,
each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent, the Syndication Agent and the Documentation Agent
(collectively, the "Agents") as its agent and authorizes each Agent to take such
------
actions on its behalf and to exercise such powers as
67
are delegated to each Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
Each bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and each such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not an
Agent hereunder.
The Syndication Agent and the Documentation Agent, in their capacities
as such, shall have no duties, obligations or liabilities of any kind hereunder.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), (c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity and (d) the
Administrative Agent will upon becoming aware of the occurrence of a Default
give notice of such Default to each Lender. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it
68
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
69
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01 Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Xxxx at:
000 Xxxxxxx 0
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Treasurer
with a copy to:
000 Xxxxxxx 0
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Secretary
(b) If to the Company, at:
000 Xxxxxxx 0
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Treasurer
with a copy to:
000 Xxxxxxx 0
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Secretary
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(c) if to the Administrative Agent, to:
The Chase Manhattan Bank
Loan and Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of Xxx Xxxxxxx
(Telecopy No. 212-582-5777)
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx 00000
Attention of Xxxxxx X. Xxxxx
(Telecopy No.212-270-7935);
(d) if to the Issuing Bank, to:
The Chase Manhattan Bank
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention of Xxxxxxx Xxxxxxx
(Telecopy No.302-428-3311);
(e) if to the Swingline Lender, to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx 00000
Attention of Xxx Xxxxxxx
(Telecopy No.212-582-5777);
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx 00000
Attention of Xxxxxx X. Xxxxx
(Telecopy No.212-270-7935);
(f) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
71
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02 Waivers; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, or (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
----------------
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder
without the prior written consent of the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be.
72
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of counsel for the Administrative Agent, the Issuing
Bank or such Lender, in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
--------
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under
73
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
--------
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that, other than as part of the Company Closing, the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
--------
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Commitment or any Lender's obligations in respect of its
LC Exposure or Swingline Exposure, the Issuing Bank and the Swingline Lender)
must give their prior written consent to such assignment (which consent shall in
any case not be unreasonably withheld; it being understood that it is not
unreasonable to withhold consent with respect to any proposed assignment to
any financial institution having net capital and surplus of less than
$1,000,000,000 or senior, unsecured, long-term
74
indebtedness for borrowed money with a credit rating of less than A-), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 and after giving effect thereto, the assigning Lender
must have Commitments and Loans aggregating at least $5,000,000, unless each of
the Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
-------- -------
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (1) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Commitment, and the outstanding
balances of its Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (2) except as set forth in (1) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of its Subsidiaries of any of its obligations under this
Agreement, any Loan Document or any other instrument or document furnished
pursuant hereto, (3) such assignee represents and warrants that it is
75
legally authorized to enter into such Assignment and Acceptance; (4) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in Section 3.04 or
delivered pursuant to Section 5.01 and such other documents and information as
it has been deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (5) such assignee will independently
and without reliance upon any Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (6) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto, and (7) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reason able time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
-----------
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
--------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative
76
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
--------
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations and
--------
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
77
and Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement
----------------------------------------
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be
------------
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process.
-------
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
78
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
79
SECTION 9.11 Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
-----------
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
--------
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything
------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until
80
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
[the remainder of this page intentionally left blank]
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
ARCH CHEMICALS, INC.
By: /s/ Xxxxx X. X'Xxxxxx
--------------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Vice President and Assistant Secretary
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as Syndication Agent,
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.,
individually and as Documentation Agent,
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxx Xxx
--------------------------------------
Name: Xxx Xxx
Title: Corporate Banking Officer
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Executive Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx Xxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
--------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Corporate Banking Officer
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ X.X. Xxxxxx
--------------------------------------
Name: X.X. Xxxxxx
Title: Authorised Signatory
By: /s/ M. E. Eertmans
--------------------------------------
Name: M. E. Eertmans
Title: Authorised Signatory
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Schedule 2.01
-------------
Commitments
-----------
Lender Commitment
------- ----------
The Chase Manhattan Bank $ 15,000,000
Bank of America National Trust and Sav- $ 15,000,000
ings Association
Wachovia Bank, N.A. $ 15,000,000
The Bank of New York $ 10,000,000
The First National Bank of Chicago $ 10,000,000
First Union National Bank $ 10,000,000
Fleet National Bank $ 10,000,000
SunTrust Bank, Atlanta $ 10,000,000
ABN Amro Bank N.V. $ 7,500,000
BBL International (U.K.) Limited $ 7,500,000
PNC Bank, National Association $ 7,500,000
State Street Bank and Trust Company $ 7,500,000
------------
Total $125,000,000
Schedule 3.06
-------------
Disclosed Matters (Xxxx and Arch)
---------------------------------
No matters other than those matters heretofore disclosed in the Form 10 or in
Olin's Annual Report on Form 10-K for the year ended December 31, 1997 and its
Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 1998
Schedule 6.01
-------------
Existing Indebtedness of Arch Subsidiaries
------------------------------------------
Amount Maturity
------- --------
(i) Etoxyl (Venezuela) $5,515,343 Monthly installments of
$45,961 commencing April
1, 1999 though 2009
(ii) Kimya (Turkey) $1,675,000 September 3, 2000
(iii) Louisiana IDB/*/ $1,000,000 March 1, 2008
____________________
/*/ The Louisiana IDB is an obligation of Xxxx. It is listed as "Indebtedness"
because it is secured by a lien on property to be transferred (subject to
this lien) to Arch as part of the Spin-Off.
Schedule 6.02
-------------
Existing Liens of Arch and its Subsidiaries
-------------------------------------------
None, except liens in connection with the Louisiana IDB./*/
___________________
/*/ The Louisiana IDB is an obligation of Xxxx. It is listed as a "Lien"
because it is secured by a lien on property to be transferred (subject to
this lien) to Arch as part of the Spin-Off.
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of January 27, 1999
(as amended and in effect on the date hereof, the "Credit Agreement"), among
Arch Chemicals, Inc., Xxxx Corporation, the Lenders and Agents named therein and
The Chase Manhattan Bank, as Administrative Agent for the Lenders. Terms
defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit, LC Disbursements and Swingline Loans held
by the Assignor on the Assignment Date, but excluding accrued interest and fees
to and excluding the Assignment Date. The Assignee hereby acknowledges receipt
of a copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
===================================================================================
Principal Amount As- Percentage Assigned of Fa-
signed (and identifying cility/Commitment (set forth,
information as to individ- to at least 8 decimals, as a
Facility ual Competitive Loans) percentage of the Facility and
-------- -----------------
the aggregate Commitments
of all Lenders thereunder)
----------
-----------------------------------------------------------------------------------
Commitment Assigned: $ %
-----------------------------------------------------------------------------------
Revolving Loans:
-----------------------------------------------------------------------------------
Competitive Loans:
===================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
--------------------
By: ______________________________
Name:
Title:
[Name of Assignee] , as Assignee
--------------------
By: ______________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
[Name of Borrower], The Chase Manhattan Bank,
as Administrative Agent,
By: ______________________ By: __________________________
Name: Name:
Title: Title:
The Chase Manhattan Bank, as The Chase Manhattan Bank,
as Swingline Lender, as Issuing Bank
By: ________________________ By: _______________________________
Name: Name:
Title: Title:
EXHIBIT B
OPINION OF COUNSEL FOR THE BORROWER
[Closing Date]
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have acted as counsel for Arch Chemicals, Inc., a Virginia
corporation ("Arch"), and Xxxx Corporation, a Virginia corporation ("Olin"; and
---- ----
together with Arch, the "Loan Parties"), in connection with the (a) Five Year
------------
Credit Agreement dated as of the date hereof (as the same may be amended,
supplemented or otherwise modified from time to time, the "Five Year Credit
----------------
Agreement") among the Loan Parties, the lenders and agents party thereto and The
---------
Chase Manhattan Bank, as administrative agent for the lenders and (b) 364-Day
Credit Agreement dated as of the date hereof (as the same may be amended,
supplemented or otherwise modified from time to time, the "364-Day Credit
--------------
Agreement"; and together with the Five Year Credit Agreement, the "Credit
--------- ------
Agreements") among the Loan Parties, the lenders and agents party thereto and
----------
The Chase Manhattan Bank, as administrative agent for the lenders. Terms
defined in the Credit Agreements are used herein with the same meanings.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Loan Parties (a) is a corporation duly organized,
validly existing and in good standing under the laws of Virginia/1/, (b) has
all requisite power and authority to carry on its business as now conducted and
(c) except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
________________
/1/ Virginia counsel opinion
2. The Transactions are within each Loan Party's corporate powers and
have been duly authorized by all necessary corporate and, if required,
stockholder action. The Credit Agreements and promissory notes issued pursuant
thereto have been duly executed and delivered by each Loan Party which is a
party thereto and each constitutes a legal, valid and binding obligation of each
Loan Party which is a party thereto, enforce able in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorgani zation, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of either Loan Party or any of their respective
Subsidiaries or any order of any Govern mental Authority, (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon either Loan Party or any of their respective Subsidiaries or their
assets, or give rise to a right thereunder to require any payment to be made by
either Loan Party or any of their respective Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of either Loan
Party or any of their respective Subsidiaries.
4. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to our knowledge,
threatened against or affecting either Loan Party or any of their respective
Subsidiaries (a) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect (other than
the Disclosed Matters) or (b) that involve the Credit Agreements or the
Transactions.
5. No Loan Party nor any of their respective Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
We are members of the bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the Federal laws of
the United States of America. This opinion is rendered solely to you in
connection with the above matter. This opinion may not be relied upon by you
for any other purpose or relied upon by any other Person (other than your
successors and assigns as Lenders) without our prior written consent.
Very truly yours,
EXHIBIT C
XXXX CREDIT AGREEMENT
AFFIRMATIVE COVENANTS, NEGATIVE COVENANTS
AND DEFINED TERMS
COMPOSITE CONFORMED COPY
As amended by (i) Letter dated April 11,
1995, effective May 1, 1995, (ii) Letter
dated October 26, 1996, effective October 31,
1996, (iii) Third Letter Amendment dated and
effective November 12, 1997 and (iv) Fourth
Letter Amendment dated and effective November
12, 1997
U.S. $250,000,000
CREDIT AGREEMENT
Dated as of September 30, 1993
Among
XXXX CORPORATION
as Borrower
-- --------
and
THE BANKS NAMED HEREIN
as Banks
-- -----
9/30/93
ARTICLE V
Covenants of the Borrower
-------------------------
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
----------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each Subsidiary to
--------------------------
comply, with all applicable laws, rules, regulations and orders (such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent contested in good faith) the
failure to comply with which would have a material adverse effect on the
property, condition or operations (financial or otherwise) of the Borrower
or the Borrower and the Subsidiaries taken as a whole.
(b) Ratio of EBIT to Debt Service. Maintain, at all times, a ratio
------------------------------
of EBIT to Debt Service of not less than 2.0 to 1.
(c) Consolidated Tangible Shareholders' Equity. Maintain, at all
-------------------------------------------
times, a Consolidated Tangible Shareholders' Equity of not less than
$400,000,000.
(d) [Intentionally left blank.]
(e) Insurance. Maintain, and cause each Subsidiary to maintain,
----------
insur ance with reputable insurance companies or associations in such
amount and covering such risks as the Borrower, in its good faith business
judgment, believes necessary.
(f) ERISA. And will ensure that each ERISA Affiliate will meet its
------
minimum funding requirements and all of its other obligations under ERISA
with respect to all of its Plans and satisfy all of its obligations to
Multiemployer Plans, including any Withdrawal Liability, if the failure to
do so would have a material adverse effect on the property, condition or
operations of the Borrower or the Borrower and the Subsidiaries taken as a
whole.
(g) Reporting Requirements. Furnish to the Lenders:
-----------------------
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each year, balance
sheets of the Borrower and the Subsidiaries, on a consolidated basis,
as of the end of such quarter and statements of income and retained
earnings and cash flow of the Borrower and the Subsidiaries, on a
consolidated basis, for the
period commencing at the end of the previous year and ending with the
end of such quarter, certified by the chief financial officer of the
Borrower, subject to audit and year end adjustments;
(ii) as soon as available and in any event within 120 days after
the end of each year, a copy of the balance sheets of the Borrower and
the Subsidiaries, on a consolidated basis, as of the end of such year
and the statements of income and retained earnings and cash flow of
the Borrower and the Subsidiaries, on a consolidated basis, for such
year, certified by KPMG Peat Marwick or another independent nationally
recognized firm of public accountants;
(iii) as soon as possible and in any event within ten days after
an officer of the Borrower becomes aware of the occurrence of each
Event of Default (and each event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default), an
Officer's Certificate setting forth details of such Event of Default
or event and the action which the Borrower has taken and proposes to
take with respect thereto;
(iv) contemporaneously with each delivery of the statements
referred to in clauses (i) and (ii) above, (A) either an Officer's
Certificate stating that no Event of Default (other than by reason of
non-compliance with the covenants referred to in Sections 5.01(b), (c)
and (d) and no event which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default (other than by
reason of non-compliance with the covenants referred to in Sections
5.01(b), (c) and (d)) occurred during such quarter or, if applicable,
an Officer's Certificate pursuant to clause (iii) above, (B) an
Officer's Certificate stating that, as of the last day of the
preceding quarter, and to the best of his or her knowledge, at all
times during the preceding quarter, the Borrower was in compliance
with the covenants referred to in Sections 5.01(b), (c) and (d) and
providing reasonable details of the calculations evidencing the
Borrower's compliance with such covenants and (C) reasonable details
of each material change in generally accepted accounting principles
from those applied in preparing the statements referred to in Section
4.01(e) insofar as such changes are applicable to the statements
referred to in clauses (i) and (ii) above;
(v) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its shareholders, and
copies of all reports and registration statements which the Borrower
or any Subsidiary files with the Securities and Exchange Commission or
any national
securities exchange (other than those pertaining to employee benefit
plans); and
(vi) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any Subsidiary
as any Lender may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
-------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not, without the written consent of the Majority Lenders:
(a) Liens. Create, assume or suffer to exist or permit any
------
Subsidiary of the Borrower to create, assume or suffer to exist any Lien
upon any of its property or assets, whether now owned or hereafter
acquired, except
(i) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings,
(ii) other Liens incidental to the conduct of its business or
the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business,
(iii) Liens on property or assets of a Domestic Subsidiary to
secure obligations of such Subsidiary to the Borrower or another
Domestic Subsidiary,
(iv) any Lien on property of any Foreign Subsidiary to secure
Debt of such Subsidiary; provided, that, immediately after giving
-------- ----
effect thereto and to the concurrent repayment of any other Debt,
Consolidated Secured Debt shall not exceed an amount equal to 8% of
Consolidated Net Tangible Assets,
(v) subject to the further limitations of Sections 5.02(b) and
(c), any Lien existing on any property of any corporation at the time
it became a Subsidiary, or existing prior to the time of acquisition
upon any property acquired by the Borrower or any Subsidiary through
purchase, merger or consolidation or otherwise, whether or not assumed
by the Borrower or such Subsidiary, or placed upon property at the
time of acquisition by the Borrower or any Subsidiary to secure a
portion of the purchase price
thereof, provided that (A) any such Lien shall not encumber any other
--------
property of the Borrower or such Subsidiary, and (B) the aggregate
principal amount of all Funded and Current Debt of all Subsidiaries
secured by such Liens and by any Liens permitted by clauses (vi) and
(viii) below plus, without duplication, the aggregate principal amount
of all Funded and Current Debt of all Domestic Subsidiaries permitted
by clause (ii) of Section 5.02(b) shall not exceed, at the time such
corporation becomes a Subsidiary or at the time of acquisition of such
property by a Subsidiary, or at the time of any renewal, extension or
refunding of such Lien, as the case may be, and in each case
immediately after giving effect thereto and to the concurrent
repayment of any other Debt, an amount equal to 10% of Consolidated
Net Tangible Assets, and further provided that the aggregate
------- --------
principal amount of all Funded and Current Debt of the Borrower and of
all Subsidiaries secured by liens permitted by clauses (iv), (v),
(vi), and (viii) of this Section 5.02(a) shall not cause Consolidated
Secured Debt to exceed 10% of the Consolidated Net Tangible Assets at
the time of acquisition of such property by the Borrower or any
Subsidiary or at the time such corporation becomes a Subsidiary or at
the time such Funded or Current Debt is incurred by the Borrower or
any Subsidiary or is renewed, extended or refunded,
(vi) subject to the further proviso to clause (ii) of Section
5.02(b), any Lien renewing, extending or refunding any Lien permitted
by clause (v) above, provided that the principal amount secured is not
--------
increased and the Lien is not extended to other property,
(vii) Liens incurred in connection with any Tax-Exempt Financing
which do not in the aggregate materially detract from the value of the
property or assets affected thereby or materially impair the use of
such property or assets in the operation of its business,
(viii) Liens on property or assets granted in connection with
applications for or reimbursement obligations with respect to letters
of credit issued at the request of the Borrower or a Subsidiary by a
banking institution to secure the performance of obligations of the
Borrower or a Subsidiary relating to such letters of credit, to the
extent such banking institution requested the granting to it of such
Lien as a condition for its issuance of the letter of credit; provided
--------
that immediately after giving effect thereto Consolidated Secured Debt
shall not exceed an amount equal to 10% of Consolidated Net Tangible
Assets, it being understood that solely for the purpose of calculating
Consolidated Secured Debt under this Section 5.02(a) the entire face
amount of each such letter of credit,
whether or not any amount thereunder has been drawn down or is
outstanding, shall constitute Consolidated Secured Debt, and
(ix) Liens in favor of the Xxxx-DNT Limited Partnership, a
Delaware limited partnership, or Air Products and Chemicals, Inc., a
Delaware corporation, or any of their respective successors and
assigns, securing obligations relating to lease agreements entered
into with respect to a demonstration DNT plant and a commercial DNT
plant as set forth in and pursuant to Precautionary Security
Agreements to be filed and recorded in the appropriate records of
Calcasieu Parish, Louisiana with respect to the property referred to
therein, and with respect to real estate assets referred to therein
not to exceed in the aggregate fifteen acres of Borrower's real
estate, and extensions and renewals of such liens.
(b) Debt. Create, incur, assume, guarantee or in any way become
-----
liable for any additional Funded Debt or create, incur, assume or suffer to
exist any Current Debt, or permit any Subsidiary to do so, except
(i) Funded Debt of the Borrower or any Foreign Subsidiary and
Funded Debt of any Domestic Subsidiary of the type referred to in
clause (ii) below if, immediately after giving effect thereto and to
the concurrent repayment of any other Funded Debt, (A) Consolidated
Senior Funded Debt shall not exceed an amount equal to 45% of
Consolidated Net Tangible Assets, and (B) Consolidated Funded Debt
shall not exceed an amount equal to 55% of Consolidated Net Tangible
Assets, provided, however, that no Foreign Subsidiary may create,
-------- -------
incur, assume, guarantee or in any way become liable for any
additional Funded Debt permitted by this clause (i) unless,
immediately after giving effect thereto and to the concurrent
repayment of any other Funded Debt, the aggregate principal amount of
all Funded Debt of all Foreign Subsidiaries (other than any Funded
Debt of a Foreign Subsidiary owing to any other such Subsidiary) shall
not exceed $80,000,000, and further provided that the Borrower may not
----------------
guarantee (including in such term any other liability includible in
any determination of Funded Debt of the Borrower) any Funded Debt of a
Subsidiary if, after giving effect to such guarantee, the aggregate
principal amount of all such Funded Debt so guaranteed would exceed,
at any time outstanding, $50,000,000,
(ii) Funded or Current Debt of any Domestic Subsidiary secured by
Liens permitted by the provisions of clause (v) of Section 5.02(a) or
unsecured and either issued or assumed by such Subsidiary in
connection with payment to sellers of properties or businesses
acquired by such Subsidiary or payable by such Subsidiary and
outstanding at the time it
became a Subsidiary, provided that no such Subsidiary may create,
--------
incur, assume, guarantee or in any way become liable for any
additional Funded or Current Debt permitted by this clause (ii)
unless, immediately after giving effect thereto and to the concurrent
repayment of any other Debt (A) the Debt limitations of clause (i)
above will not thereby be violated, and (B) the aggregate principal
amount of all Funded and Current Debt permitted by this clause (ii)
plus, without duplication, the aggregate principal amount of all
Funded and Current Debt of all Subsidiaries secured by Liens permitted
by clauses (v) and (vi) of Section 5.02(a) shall not exceed an amount
equal to 10% of Consolidated Net Tangible Assets; and further provided
----------------
that no Funded or Current Debt permitted by this clause (ii) shall be
extended or renewed or remain outstanding after its stated maturity,
(iii) Current Debt of the Borrower or any Foreign Subsidiary, and
(iv) Funded or Current Debt of any Domestic Subsidiary to the
Borrower or any other Domestic Subsidiary.
(c) Mergers, Etc. (i) Merge or consolidate with or into any other
-------------
Person (other than a Subsidiary) or (ii) convey, transfer, lease or
otherwise dispose of, or permit a Subsidiary to convey, transfer, lease, or
otherwise dispose of, (whether in one transaction or in a series of related
transactions) all or substantially all of the property or assets of the
Borrower and its Subsidiaries taken as a whole (whether now owned or
hereafter acquired), directly or indirectly, to any Person, including
through a merger or consolidation of a Subsidiary with an unaffiliated
party, unless, in each case of (i) or (ii), (A) after giving effect to such
proposed transaction, no Event of Default or event which with the giving
of notice or lapse of time, or both, would constitute an Event of Default
would exist, (B) the surviving or acquiring entity is a corporation
organized under the laws of one of the United States and (C) the surviving
or acquiring corporation if other than the Borrower, expressly assumes the
performance of all the obligations of the Borrower under this Agreement and
the Notes.
(d) [Intentionally Left Blank.]
(e) ERISA. Create, assume or suffer to exist or permit any ERISA
------
Affiliate to create, assume or suffer to exist (i) any Insufficiency of any
Plan (or, in the case of a Plan with respect to which an ERISA Event
described in clauses (iii) through (vi) of the definition of ERISA Event
shall have occurred and then exist, the liability related thereto), in
respect of which Plan an ERISA Event has occurred, or (ii) any Withdrawal
Liability under any Multiemployer Plan, if the sum of (A) any such
Insufficiency or Withdrawal Liability, as applicable, (B) the
Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or, in the case of a Plan with
respect to which an ERISA Event described in clauses (iii) through (vi) of
the definition of ERISA Event shall have occurred and then exist, the
liability related thereto), (C) amounts then required to be paid to any and
all other Multiemployer Plans by the Borrower or its ERISA Affiliates as
Withdrawal Liability and (D) the aggregate principal amount of all Funded
and Current Debt of the Borrower and all the Subsidiaries secured by Liens
permitted by clauses (iv), (v) and (vi) of Section 5.02(a), shall exceed an
amount equal to 10% of Consolidated Net Tangible Assets.
DEFINITIONS AND ACCOUNTING TERMS
"A Advance" means an advance (other than a B Advance) by a Lender to the
---------
Borrower pursuant to Section 2.02(a), and refers to an Adjusted CD Rate Advance,
a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Advance)
----
"A Borrowing" means a borrowing consisting of A Advances of the same Type
-----------
made on the same day by the Lenders.
"A Note" means a promissory note of the Borrower payable to the order of
------
any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the A
Advances made by such Lender.
"Adjusted CD Rate Advance" means an A Advance which bears interest as
------------------------
provided in Section 2.06(b).
"Advance" means an A Advance or a B Advance.
-------
"B Advance" means an advance by a Lender to the Borrower pursuant to the
---------
auction bidding procedure described in Section 2.02(b).
"B Note" means a promissory note of the Borrower payable to the order of
------
any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a B Advance made by
such Lender.
"Base Rate Advance" means an A Advance which bears interest as provided in
-----------------
Section 2.06(a).
"Business Day" means a day of the year on which banks are not required or
------------
authorized to close in New York City and, if the applicable Business Day relates
to any
Eurodollar Rate Advances, on which dealings are carried on in the London
interbank market.
"Commitment" has the meaning specified in Section 2.01.
----------
"Consolidated Funded Debt" shall mean all Funded Debt of the Borrower and
------------------------
its Subsidiaries, on a consolidated basis, outstanding at the time of any
determination with respect thereto.
"Consolidated Net Tangible Assets" shall mean the sum of (a) the value
--------------------------------
stated on the books of the Borrower of the capital stock of all classes of the
Borrower, (b) the amount of the consolidated surplus, whether capital or earned,
of the Borrower and its Subsidiaries, and (c) Consolidated Funded Debt, less (i)
repurchased shares, (ii) unamortized Debt discount and expense, goodwill,
trademarks, brand names, patents and other intangible assets, other than
unamortized Debt discount and expense, goodwill, trademarks, brand names,
patents and other intangible assets which are included on the Borrower's
consolidated balance sheet dated June 30, 1986, and (iii) any write-up of the
value of any assets (other than an allocation of purchase price in an
acquisition) after June 30, 1986; all as determined in accordance with generally
accepted accounting principles.
"Consolidated Secured Debt" means all Funded and Current Debt of the
-------------------------
Borrower and its Subsidiaries, on a consolidated basis, outstanding at the time
of any determination with respect thereto which is secured, directly or
indirectly, by any Lien upon any property or assets of the Borrower or any
Subsidiary.
"Consolidated Senior Funded Debt" means all Funded Debt of the Borrower and
-------------------------------
its Subsidiaries, on a consolidated basis, outstanding at the time of any
determination with respect thereto other than (i) any such Funded Debt which
shall have been validly and effectively subordinated to the prior payment in
full of all principal of, and interest on and all other amounts payable under,
the Advances and the Notes by provisions in form and substance satisfactory to
the Majority Lenders and (ii) the 9-1/2% Subordinated Notes due 1997 issued
pursuant to the Indenture between the Borrower and Bankers Trust Company, as
Trustee, dated as of February 1, 1987.
"Consolidated Tangible Shareholders' Equity" means the sum of (a) the value
------------------------------------------
stated on the books of the Borrower of the capital stock of all classes of the
Borrower and (b) the amount of the consolidated surplus, whether capital or
earned, of the Borrower and its Subsidiaries, less (i) repurchased capital stock
of all classes of the Borrower, (ii) unamortized Debt discount and expense,
goodwill, trademarks, brand names, patents and other intangible assets, other
than unamortized Debt discount and expense, goodwill, trademarks, brand names,
patents and other intangible assets which are included on the Borrower's
consolidated balance sheet dated June 30, 1986, and (iii) any write-up of the
value of any assets (other than an allocation of purchase price in an
acquisition) after June 30, 1986; all as determined in accordance with generally
accepted accounting principles.
"Current Debt" means any obligation for borrowed money (and any notes
------------
payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money) payable on demand or within a
period of one year from the date of the creation thereof; provided that any
---------
obligation shall be treated as Funded Debt, regardless of its term, if such
obligation is renewable pursuant to the terms thereof or of a revolving credit
or similar agreement effective for more than one year after the date of the
creation of such obligation, or may be payable out of the proceeds of a similar
obligation pursuant to the terms of such obligation or of any such agreement.
Notwithstanding the foregoing, on each day prior to the Termination Date,
Advances shall be deemed to be Current Debt if (i) the purpose for which such
Advances are used is working capital and the Interest Period of such Advances
does not exceed 270 days and (ii) for a period of at least 30 consecutive days
within each rolling period of twelve consecutive calendar months prior to such
day, the aggregate principal amount of Advances outstanding does not exceed the
amount of additional Funded Debt which could then be incurred pursuant to
Section 5.02(b)(i).
"Debt" means both Funded Debt and Current Debt.
----
"Debt Service" means, as of any day, the sum of interest payable on, and
------------
amortization of debt discount in respect of, all Debt during the then most
recently completed four consecutive quarters.
"Domestic Subsidiary" shall mean any Subsidiary organized under the laws of
-------------------
any State of the United States of America, substantially all of the assets of
which are located, and substantially all of the business of which is conducted,
in the United States of America.
"EBIT" means, as of any day, the net income (or loss), excluding gains (or
----
losses) from extraordinary or unusual items, of the Borrower and the
Subsidiaries on a consolidated basis, for the then most recently completed
four consecutive quarters plus the sum of interest expense and amortization
----
expense and provision for income taxes to the extent deducted in computing such
net income or loss.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of ERISA is
---------------
a member of the Borrower's controlled group, or under common control with the
Borrower,
within the meaning of Section 414 of the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Event" means (i) the occurrence of a reportable event, within the
-----------
meaning of Section 4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant
to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (iii) the cessation of
operations at a facility in the circumstances described in Section 4068(f) of
ERISA; (iv) the withdrawal by the Borrower or an ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (v) the failure by the Borrower or any
ERISA Affiliate to make a payment to a Plan required under Section 302(f)(1) of
ERISA, which Section imposes a lien for failure to make required payments; (vi)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan, pursuant to Section 307 of ERISA; or (vii) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition which would constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurodollar Rate Advance" means an A Advance which bears interest as
-----------------------
provided in Section 2.06(c).
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Foreign Subsidiary" shall mean any Subsidiary other than a Domestic
------------------
Subsidiary.
"Funded Debt" means and includes without duplication,
-----------
(a) any obligation payable more than one year from the date of
creation thereof, which under generally accepted accounting principles is
shown on the balance sheet as a liability (excluding reserves for deferred
income taxes and deferred incentive awards and other reserves to the extent
that such other reserves do not constitute an obligation),
(b) amounts equal to the aggregate net rentals (after making
allowance for any interest, taxes or other expenses included therein),
payable more than one year from the date of the creation thereof under any
lease (whether or not such rentals accrue and become payable only on an
annual or other periodic basis) which lease (i) constitutes the substantial
equivalent of a purchase of the property subject to such lease, (ii) has an
initial term materially less than the useful life of such property and
provides that the lessee has the option to renew such lease for the
remaining useful life of such property at a rental which at the inception
of such lease appears to be substantially less than the fair rental value
of such property, or (iii) provides an option to the lessee to acquire the
property subject to such lease at a price which at the inception of such
lease, appears to be substantially less than the probable fair value of
such property at the time or times of permitted acquisition by the lessee.
(c) non-recourse obligations secured by any Lien, if such obligations
(were they recourse) would be Funded Debt,
(d) guarantees, endorsements (other than endorsements of negotiable
instruments for collection in the ordinary course of business) and other
contingent liabilities (whether direct or indirect) with respect to the
Funded Debt, stock or dividends of any Person,
(e) obligations under any contract providing for the making of loans,
advances or capital contributions to any Person, or for the purchase of any
property from any Person, in each case in order to enable such Person, and
such contract (or any related document) by its terms provides that its
purpose is, to maintain working capital, net worth or any other balance
sheet condition or to pay debts, dividends or expenses constituting Funded
Debt,
(f) obligations under any contract for the purchase of materials,
supplies or other property if such contract (or any related document)
requires that payment for such materials, supplies or other property shall
be made regardless of whether or not delivery of such materials, supplies
or other property is ever made or tendered,
(g) obligations under any contract to rent or lease (as lessee) any
real or personal property if such contract (or any related document)
provides that the obligation to make payments thereunder is absolute and
unconditional under conditions not customarily found in commercial leases
then in general use or requires that the lessee purchase or otherwise
acquire securities or obligations of the lessor,
(h) obligations under any contract for the sale or use of materials,
supplies or other property if such contract (or any related document)
requires that payment for such materials, supplies or other property, or
the use thereof, shall be subordinated to any indebtedness (of the
purchaser or user of such materials, supplies or other property) owed or to
be owed to any Person, and
(i) obligations under any other contract which, in economic effect,
is substantially equivalent to a guarantee of Funded Debt of any Person and
shall
appear as a contingent liability on the consolidated balance sheet of the
Borrower and its Subsidiaries or in any notes related thereto;
all as determined in accordance with generally accepted accounting principles,
provided that, for the purpose of determining, at any time or from time to time
--------
under this definition, the amount of any guarantee, endorsement or contingent
liability (which is not readily determinable in accordance with such generally
accepted accounting principles) or the amount of any obligation under a
contract, such amount shall be deemed, without duplication, to be equal to
either (A) in the event that the liability of the obligor under such guarantee,
endorsement, contingent liability or obligation is limited to a fixed or
determinable monetary amount of indebtedness (either for borrowed money or of
the character referred to in clause (ii) of Section 5.02(b)) in such monetary
amount (expressed in dollars or, if in a currency other than dollars as
converted into dollars in a manner approved by the Borrower's independent public
accountants), or (B) in the event that such liability is not so limited, the
full amount (or such lesser portion thereof as shall represent the obligor's
proportionate commitment) of indebtedness (either for borrowed money or of the
character referred to in clause (ii) of Section 5.02(b)) then owed by the Person
whose obligations are being so guaranteed or endorsed, or by the Person with
respect to whose obligations or dividends such obligor has a contingent
liability or by the Person who is the obligee under any such contract, as the
case may be.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
-------------
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each A Advance comprising part of the same A
---------------
Borrowing, the period commencing on the date of such A Advance and ending the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be (a) in the case of a
Base Rate Advance, up to 180 days, (b) in the case of an Adjusted CD Rate
Advance, 30, 60, 90 or 180 days and (c) in the case of a Eurodollar Rate
Advance, 1, 2, 3 or 6 months, in each case as the Borrower may select, upon
notice received by the Lenders not later than 11:00 A.M. (New York City time) on
(i) the third Business Day prior to the first day of such Interest Period in the
case of Eurodollar Rate Advances, (ii) the Business Day prior to the first day
of such Interest Period in the case of Adjusted CD Rate Advances and (iii) the
first day of such Interest Period in the case of Base Rate Advances; provided,
---------
however, that:
-------
(A) the Borrower may not select any Interest Period which ends after
the Termination Date;
(B) Interest Periods commencing on the same date for A Advances
comprising part of the same Borrowing shall be of the same duration; and
(C) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day on such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, in the case
---------
of any Interest Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof (until such
-------
Bank shall have assigned or had assumed all interests hereunder as provided in
Sections 7.02(a) or 2.04(c)) and each assignee or Assuming Bank that shall
become a party hereto pursuant to Sections 7.02(a) or 2.04(c).
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
----
charge of any kind (including any conditional sale or other title retention
agreement, and the filing of any financing statement under the Uniform
Commercial Code of any jurisdiction).
"Majority Lenders" means at any time Lenders owed at least 51% of the then
----------------
aggregate unpaid principal amount of the A Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least 51% of the
Commitments.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions, such plan
being maintained pursuant to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Note" means an A Note or a B Note.
----
"Officer's Certificate" means a certificate signed in the name of the
---------------------
Borrower by its President, one of its Vice Presidents, its Treasurer or its
Controller.
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Single-Employer Plan" means a single employer plan, as defined in Section
--------------------
4001(a)(15) of ERISA, which (i) is maintained for employees of the Borrower or
an ERISA Affiliate and no Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which the Borrower or an
ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Subsidiary" means, as at any particular time, any corporation included as
----------
a consolidated subsidiary of the Borrower in the financial statements contained
in the most recent report filed by the Borrower with the Securities and Exchange
Commission on Form 10-K pursuant to the Securities Exchange Act of 1934,
provided that, under then current regulations of the Securities and Exchange
--------
Commission, such corporation may continue to be so included as a consolidated
subsidiary of the Borrower in any such annual report thereafter filed by the
Borrower with the Securities and Exchange Commission.
"Tax-Exempt Financing" means a transaction with a governmental unit or
--------------------
instrumentality which involves (i) the issuance by such governmental unit or
instrumentality to Persons other than the Borrower or a Subsidiary of bonds or
other obligations on which the interest is exempt from Federal income taxes
under Section 103 of the Internal Revenue Code and the proceeds of which are
applied to finance or refinance the cost of acquisition of equipment or
facilities of the Borrower or any of its subsidiaries, and (ii) participation in
the transaction by the Borrower or a Subsidiary in any manner permitted by this
Agreement.
"Termination Date" means (i) October 15, 2002 or (ii) any date to which the
----------------
Termination Date shall have been extended pursuant to Section 2.04(b); provided
in each case of (i) and (ii), the earlier date on which the termination in whole
of the Commitments occurs pursuant to Section 2.04(a) or 6.01.
"Withdrawal Liability" shall have the meaning given such term under Part I
--------------------
of Subtitle E of Title IV of ERISA.
