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EXHIBIT (b)
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$250,000,000
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF APRIL 18, 1997
AMONG
XXXXXX & XXXXXXXX CORPORATION
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA SECURITIES, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . . . . . . . . . . . . 18
1.03 Accounting Principles . . . . . . . . . . . . . . . . . 19
1.04 Currency Equivalents Generally . . . . . . . . . . . . 20
ARTICLE II
THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.01 Amounts and Terms of Commitments. . . . . . . . . . . . 20
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . 20
2.03 Procedure for Committed Borrowing . . . . . . . . . . . 21
2.04 Conversion and Continuation Elections for Committed
Borrowings . . . . . . . . . . . . . . . . . . . . . . 22
2.05 Utilization of Commitments in Offshore Currencies . . . 23
2.06 Bid Borrowings . . . . . . . . . . . . . . . . . . . . 25
2.07 Procedure for Bid Borrowings . . . . . . . . . . . . . 25
2.08 Voluntary Termination or Reduction of Commitments . . . 28
2.09 Optional Prepayments. . . . . . . . . . . . . . . . . . 29
2.10 Currency Exchange Fluctuations . . . . . . . . . . . . 29
2.11 Mandatory Prepayments of Loans . . . . . . . . . . . . 29
2.12 Repayment . . . . . . . . . . . . . . . . . . . . . . . 30
(a) The Revolving Credit . . . . . . . . . . . . . 30
(b) Bid Loans . . . . . . . . . . . . . . . . . . . 30
2.13 Interest. . . . . . . . . . . . . . . . . . . . . . . . 30
2.14 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 31
(a) Arrangement, Agency Fees . . . . . . . . . . . 31
(b) Facility Fee . . . . . . . . . . . . . . . . . 31
2.15 Computation of Fees and Interest . . . . . . . . . . . 31
2.16 Payments by the Company . . . . . . . . . . . . . . . . 31
2.17 Payments by the Banks to the Agent . . . . . . . . . . 32
2.18 Sharing of Payments, Etc. . . . . . . . . . . . . . . . 33
ARTICLE III
THE LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . 33
3.01 The Letter of Credit Subfacility. . . . . . . . . . . . 33
3.02 Issuance, Amendment and Renewal of Letters of Credit. . 35
3.03 Risk Participations, Drawings and Reimbursements . . . 37
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3.04 Repayment of Participations . . . . . . . . . . . . . . 38
3.05 Role of the Issuing Bank . . . . . . . . . . . . . . . 39
3.06 Obligations Absolute . . . . . . . . . . . . . . . . . 39
3.07 Letter of Credit Fees . . . . . . . . . . . . . . . . . 40
3.08 Uniform Customs and Practice . . . . . . . . . . . . . 41
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . 41
4.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.02 Illegality . . . . . . . . . . . . . . . . . . . . . . 42
4.03 Increased Costs and Reduction of Return . . . . . . . . 43
4.04 Funding Losses . . . . . . . . . . . . . . . . . . . . 43
4.05 Inability to Determine Rates . . . . . . . . . . . . . 44
4.06 Reserves on Offshore Rate Loans . . . . . . . . . . . . 44
4.07 Certificates of Banks . . . . . . . . . . . . . . . . . 45
4.08 Substitution of Banks . . . . . . . . . . . . . . . . . 45
4.09 Survival . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE V
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 45
5.01 Conditions of Initial Credit Extensions . . . . . . . . 45
(a) Credit Agreement and Notes . . . . . . . . . . 45
(b) Resolutions; Incumbency . . . . . . . . . . . . 45
(c) Organization Documents; Good Standing . . . . . 46
(d) Legal Opinions . . . . . . . . . . . . . . . . 46
(e) Payment of Fees . . . . . . . . . . . . . . . . 46
(f) Certificate . . . . . . . . . . . . . . . . . . 46
(g) Other Documents . . . . . . . . . . . . . . . . 46
5.02 Conditions to All Credit Extensions . . . . . . . . . . 46
(a) Notice of Borrowing or Issuance . . . . . . . . 47
(b) Continuation of Representations and
Warranties . . . . . . . . . . . . . . . . . . 47
(c) No Existing Default . . . . . . . . . . . . . . 47
ARTICLE VI
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 47
6.01 Corporate Existence and Power . . . . . . . . . . . . . 47
6.02 Corporate Authorization; No Contravention . . . . . . . 48
6.03 Governmental Authorization . . . . . . . . . . . . . . 48
6.04 Binding Effect . . . . . . . . . . . . . . . . . . . . 48
6.05 Litigation . . . . . . . . . . . . . . . . . . . . . . 48
6.06 No Default . . . . . . . . . . . . . . . . . . . . . . 48
6.07 ERISA Compliance . . . . . . . . . . . . . . . . . . . 48
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6.08 Use of Proceeds; Margin Regulations . . . . . . . . . . 49
6.09 Title to Properties . . . . . . . . . . . . . . . . . . 49
6.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.11 Financial Condition . . . . . . . . . . . . . . . . . . 50
6.12 Environmental Matters . . . . . . . . . . . . . . . . . 50
6.13 Regulated Entities . . . . . . . . . . . . . . . . . . 50
6.14 Copyrights, Patents, Trademarks and Licenses, etc.. . . 50
6.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . 51
6.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . 51
6.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VII
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 51
7.01 Financial Statements . . . . . . . . . . . . . . . . . 51
7.02 Certificates; Other Information . . . . . . . . . . . . 52
7.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . 52
7.04 Preservation of Corporate Existence, Etc. . . . . . . . 53
7.05 Maintenance of Property . . . . . . . . . . . . . . . . 53
7.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . 54
7.07 Payment of Obligations . . . . . . . . . . . . . . . . 54
7.08 Compliance with Laws . . . . . . . . . . . . . . . . . 54
7.09 Compliance with ERISA . . . . . . . . . . . . . . . . 54
7.10 Inspection of Property and Books and Records . . . . . 54
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . 55
7.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . 55
7.13 Guarantors . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VIII
NEGATIVE AND FINANCIAL COVENANTS . . . . . . . . . . . . . . . . 55
8.01 Limitation on Liens . . . . . . . . . . . . . . . . . . 55
8.02 Disposition of Assets . . . . . . . . . . . . . . . . . 57
8.03 Consolidations and Mergers . . . . . . . . . . . . . . . 58
8.04 Loans and Investments . . . . . . . . . . . . . . . . . 58
8.05 Limitation on Indebtedness . . . . . . . . . . . . . . . 59
8.06 Transactions with Affiliates . . . . . . . . . . . . . . 60
8.07 Contingent Obligations . . . . . . . . . . . . . . . . . 60
8.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.09 Change in Business . . . . . . . . . . . . . . . . . . . 60
8.10 Accounting Changes . . . . . . . . . . . . . . . . . . . 60
8.11 Financial Covenants . . . . . . . . . . . . . . . . . . 60
(a) Interest Coverage Ratio . . . . . . . . . . . . 60
(b) Leverage Ratio . . . . . . . . . . . . . . . . 61
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ARTICLE IX
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 61
9.01 Event of Default . . . . . . . . . . . . . . . . . . . . 61
(a) Non-Payment . . . . . . . . . . . . . . . . . . . 61
(b) Representation or Warranty . . . . . . . . . . . . 61
(c) Specific Defaults. . . . . . . . . . . . . . . . . 61
(d) Other Defaults . . . . . . . . . . . . . . . . . . 61
(e) Cross-Default . . . . . . . . . . . . . . . . . . 61
(f) Insolvency; Voluntary Proceedings . . . . . . . . 62
(g) Involuntary Proceedings . . . . . . . . . . . . . 62
(h) ERISA . . . . . . . . . . . . . . . . . . . . . . 62
(i) Monetary Judgments . . . . . . . . . . . . . . . . 62
(j) Change of Control. . . . . . . . . . . . . . . . . 62
9.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . 63
9.03 Rights Not Exclusive . . . . . . . . . . . . . . . . . . 63
ARTICLE X
THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
10.01 Appointment and Authorization; "Agent" . . . . . . . . . 64
10.02 Delegation of Duties . . . . . . . . . . . . . . . . . . 64
10.03 Liability of Agent . . . . . . . . . . . . . . . . . . . 64
10.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . 64
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . 65
10.06 Credit Decision . . . . . . . . . . . . . . . . . . . . 65
10.07 Indemnification of Agent . . . . . . . . . . . . . . . . 66
10.08 Agent in Individual Capacity . . . . . . . . . . . . . . 66
10.09 Successor Agent . . . . . . . . . . . . . . . . . . . . 66
10.10 Withholding Tax. . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 68
11.01 Amendments and Waivers . . . . . . . . . . . . . . . . . 68
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . 69
11.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . 69
11.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . 70
11.05 Company Indemnification . . . . . . . . . . . . . . . . 70
11.06 Payments Set Aside . . . . . . . . . . . . . . . . . . . 71
11.07 Successors and Assigns . . . . . . . . . . . . . . . . . 71
11.08 Assignments, Participations, etc. . . . . . . . . . . . 71
11.09 Confidentiality . . . . . . . . . . . . . . . . . . . . 72
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11.10 Set-off . . . . . . . . . . . . . . . . . . . . . . . . 73
11.11 Notification of Addresses, Lending Offices, Etc. . . . . 73
11.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . 73
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . 74
11.14 No Third Parties Benefited . . . . . . . . . . . . . . . 74
11.15 Governing Law and Jurisdiction . . . . . . . . . . . . . 74
11.16 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . 74
11.17 Judgment . . . . . . . . . . . . . . . . . . . . . . . . 75
11.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . 75
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MULTICURRENCY CREDIT AGREEMENT
This MULTICURRENCY CREDIT AGREEMENT is entered into as of April 18, 1997,
among XXXXXX & XXXXXXXX CORPORATION, a Wisconsin corporation (the "Company"),
the several financial institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), and Bank of America
National Trust and Savings Association, as agent for the Banks.
WHEREAS, the Banks have agreed to make available to the Company a revolving
multicurrency credit facility with a letter of credit subfacility upon the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in subsection 2.07(c).
"Absolute Rate Auction" means a solicitation of Competitive Bids setting
forth Absolute Rates pursuant to Section 2.07.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a rate
determined with reference to the Absolute Rate.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
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"Agent" means BofA in its capacity as agent for the Banks hereunder, and
any successor agent arising under Section 10.09.
"Agent-Related Persons" means, at any time, the Agent at such time,
together with its Affiliates (including, in the case of BofA, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agent's Payment Office" means (a) in respect of payments in Dollars, the
address for payments set forth on Schedule 11.02 or such other address as the
Agent may from time to time specify in accordance with Section 11.02, and (b) in
the case of payments in any Offshore Currency, such address as the Agent may
from time to time specify in accordance with Section 11.02.
"Agreed Alternative Currency" has the meaning specified in subsection
2.05(e).
"Agreement" means this Multicurrency Credit Agreement, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"Agreement Currency" has the meaning specified in Section 11.17.
"Applicable Currency" means, as to any particular payment, Loan or Letter
of Credit, Dollars or the Offshore Currency in which it is denominated or is
payable.
"Applicable Credit Rating" shall mean the rating level assigned by S&P or
Xxxxx'x , as the case may be, from time to time on the long-term senior debt of
the Company which ranks on a parity, as to payment and security, with the
Obligations.
"Applicable Margin" shall mean on any date the applicable percentage set
forth below based upon the Level then in existence:
With Respect With Respect
Level to Offshore Rate to the Facility
----- Committed Loans Fee
--------------- --------------------
I .170% .080%
II .200% .100%
III .250% .125%
IV .300% .150%
V .425% .200%
Until the earlier of (x) the date upon which each of S&P and Xxxxx'x have
assigned an Applicable Credit Rating (such date, the "Rating Reset Date") and
(y) the date upon which the Company has completed its repurchase (after the
Closing Date) of at least three million shares of its common stock
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(such date, the "Repurchase Reset Date"), the Applicable Margin shall be deemed
to be Level I. In the event that the Rating Reset Date has not occurred on or
prior to the Repurchase Reset Date, the Applicable Margin on and after the
Repurchase Reset Date shall be deemed to be Level III; provided, however, that
in the event that the Rating Reset Date still has not occurred within 60 days
after the Closing Date and the Repurchase Reset Date has occurred, then the
Applicable Margin shall be deemed to be Level IV. Notwithstanding the
foregoing, the Applicable Margin then in effect shall be adjusted, if necessary,
(i) on the Rating Reset Date, and thereafter shall be adjusted, as applicable
from time to time, contemporaneously with any change in the Applicable Credit
Rating, and (ii) no reduction in the Applicable Margin shall be effected if a
Default or an Event of Default shall have occurred and be continuing on the
date when such change would otherwise occur, it being understood that on the
third Business Day immediately succeeding the day on which such Default or Event
of Default is either waived or cured (assuming no other Default or Event of
Default shall be then pending), the Applicable Margin shall be reduced (on a
prospective basis) in accordance with the then Applicable Credit Rating.
"Arranger" means BancAmerica Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assignment and Acceptance" has the meaning specified in subsection
11.08(a).
"Attorney Costs" means and includes all reasonable out-of-pocket fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and disbursements of internal
counsel.
"Bank" has the meaning specified in the introductory clause hereto.
"Banking Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City, Chicago or San Francisco are authorized
or required by law to close and (a) with respect to disbursements and payments
in Dollars, a day on which dealings are carried on in the applicable offshore
Dollar interbank market, and (b) with respect to any disbursements and payments
in and calculations pertaining to any Offshore Currency Loan, a day on which
commercial banks are open for foreign exchange business in London, England, and
on which dealings in the relevant Offshore Currency are carried on in the
applicable offshore foreign exchange interbank market in which disbursement of
or payment in such Offshore Currency will be made or received hereunder.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
(a) one-half of one percent (0.50%) per annum above the latest
Federal Funds Rate and (b) the rate of interest in effect for such day as
publicly announced from time to time by
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BofA in San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate.)
Any change in the reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Loan that bears interest based on the
Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one or more Bid
Loans made to the Company on the same day by one or more Banks.
"Bid Loan" means a Loan by a Bank to the Company under Section 2.06, which
may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank making such
Bid Loan to the Company.
"Bid Loan Note" has the meaning specified in Section 2.02.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type and in the same Applicable Currency made to the Company on the same day by
the Banks under Article II, and may be a Committed Borrowing or a Bid Borrowing
and, other than in the case of Base Rate Committed Loans, having the same
Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under Section
2.03.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City, Chicago or San Francisco are authorized
or required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means a Banking Day.
"Capital Adequacy Regulation" means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Lease" has the meaning specified in the definition of "Capital
Lease Obligations."
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"Capital Lease Obligations" means the principal component of all monetary
obligations of the Company or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, is classified as a capital
lease ("Capital Lease").
"Cash Collateralize" means to pledge and deposit with or deliver to the
Agent, for the benefit of the Agent, the Issuing Bank and the Banks, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the Agent and the
Issuing Bank (which documents are hereby consented to by the Banks). Derivatives
of such term shall have corresponding meanings.
"Change in Control" means (a) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Company, or (b) during any period of twelve consecutive calendar months,
individuals who at the beginning of such period constituted the Company's board
of directors (together with any new directors whose election by the Company's
board of directors or whose nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reasons other than death or disability to constitute a majority of the
directors then in office.
"Closing Date" means the date on which all conditions precedent set forth
in Section 5.01 are satisfied or waived by all Banks (or, in the case of
subsection 5.01(e), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and regulations promulgated
thereunder, in each case, as amended from time to time.
"Commitment", as to each Bank, has the meaning specified in Section 2.01.
"Committed Borrowing" means a Borrowing hereunder consisting of Committed
Loans made on the same day by the Banks ratably according to their respective
Pro Rata Shares and, in the case of Offshore Rate Committed Loans, having the
same Interest Periods.
"Committed Loan" means a Loan by a Bank to the Company under Section 2.01,
and may be an Offshore Rate Committed Loan or a Base Rate Committed Loan (each,
a "Type" of Committed Loan).
"Committed Loan Note" has the meaning specified in Section 2.02.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in accordance
with subsection 2.07(b).
"Competitive Bid Request" has the meaning specified in subsection 2.07(a).
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"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Computation Date" has the meaning specified in subsection 2.05(a).
"Consolidated Interest Expense" means, for any period, the sum of total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Company and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of the Company and its Subsidiaries,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, all as determined on a consolidated basis for the Company and its
consolidated Subsidiaries in accordance with GAAP.
"Consolidated Net Income" means, for any period, the aggregate of the net
income of the Company and its Subsidiaries for such period, determined in
accordance with GAAP on a consolidated basis, provided that (i) the net income
of any other Person which is not a Subsidiary of the Company shall be included
in the Consolidated Net Income of the Company only to the extent of the amount
of cash dividends or distributions paid to the Company or to a consolidated
Subsidiary of the Company and (ii) the net income of any other Person acquired
in a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded from the Consolidated Net Income of the Company.
There shall be excluded in computing Consolidated Net Income for the Company the
excess (or the deficit), if any, of (i) any gain which must be treated as an
extraordinary item under GAAP or any gain realized upon the sale or other
disposition of any real property or equipment that is not sold in the ordinary
course of business or of any capital stock owned by the Company or its
Subsidiaries over (ii) any loss which must be treated as an extraordinary item
under GAAP or any loss realized upon the sale or other disposition of any real
property or equipment that is not sold in the ordinary course of business or of
any capital stock owned by the Company or its Subsidiaries.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; or (c) to purchase
any materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless
-6-
13
of whether delivery of such materials, supplies or other property is ever made
or tendered, or such services are ever performed or tendered. The amount of
any Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof; provided that if any Guaranty Obligation (a) is limited to an amount
less than the obligations guaranteed or supported the amount of the
corresponding Contingent Obligation shall be equal to the lesser of the amount
determined pursuant to the initial clause of this sentence and the amount to
which such guaranty is so limited or (b) is limited to recourse against a
particular asset or assets of such Person the amount of the corresponding
Contingent Obligation shall be equal to the lesser of the amount determined
pursuant to the initial clause of this sentence and the fair market value of
such asset or assets at the date for determination of the amount of the
Contingent Obligation. In the case of other Contingent Obligations, such
Contingent Obligations shall be equal to the maximum reasonably anticipated
liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section 2.04,
the Company (a) converts Committed Loans of one Type to another Type, or (b)
continues as Committed Loans of the same Type, but with a new Interest Period,
Committed Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any Loans hereunder
and (b) the Issuance of any Letters of Credit hereunder.
"Credit Termination Date" means the earlier to occur of:
(a) April 18, 2002;
(b) May 15, 1997, if the Company shall not have satisfied the
conditions contained in Section 5.01 on or prior to such date; and
(c) the date on which the Commitments terminate in accordance with
the provisions of this Agreement.
"Default" means any event or circumstance which, with the giving of notice
pursuant to this Agreement, the expiration of any cure period specified herein,
or both, would (if not cured or otherwise remedied during such cure period)
constitute an Event of Default.
"Disposition" has the meaning specified in Section 8.02.
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14
"Dollar Equivalent" means, at any time, (a) as to any amount denominated in
Dollars, the amount thereof at such time and (b) as to any amount denominated in
an Offshore Currency, the equivalent amount in Dollars as determined by the
Agent at such time on the basis of the Spot Rate for the purchase of Dollars
with such Offshore Currency on the most recent Computation Date provided for in
subsection 2.05(a).
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"EBIT" means, for any period, for the Company and its Subsidiaries on a
consolidated basis, determined in accordance with GAAP, the sum of (a)
Consolidated Net Income (or loss) for such period plus (b) all amounts treated
as expenses for interest to the extent included in the determination of such
Consolidated Net Income (or loss), plus (c) all accrued taxes on or measured by
income to the extent included in the determination of such Consolidated Net
Income (or loss).
"Effective Amount" means (i) with respect to any Committed Loans on any
date, the aggregate outstanding principal Dollar Equivalent amount thereof after
giving effect to any Committed Borrowings and prepayments or repayments of
Committed Loans occurring on such date; and (ii) with respect to any outstanding
L/C Obligations on any date, the Dollar Equivalent amount of such L/C
Obligations on such date after giving effect to any Issuances of Letters of
Credit occurring on such date and any other changes in the aggregate Dollar
Equivalent amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Eligible Assignee" means (a) a commercial bank or financial institution
organized under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $200,000,000; (b) a commercial bank
or financial institution organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a combined
capital and surplus of at least $200,000,000, provided that such bank or
financial institution is acting through a branch or agency located in the United
States; and (c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a Person of
which a Bank is a Subsidiary, or (iii) a Person of which a Bank is a Subsidiary.
"Emerging Market Entity" means a Person (other than an individual or a
Governmental Authority) formed under the laws of an Emerging Market Territory
which is not an Emerging Market Subsidiary.
"Emerging Market Subsidiary" means a Subsidiary of the Company formed under
the laws of an Emerging Market Territory.
"Emerging Market Territory" means (i) China, the Czech Republic, India,
the United Mexican States and Russia and (ii) any other territory requested by
the Company to be an Emerging
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Xxxxxx Xxxxxxxxx and approved by the Agent (such approval to be promptly
communicated to the Banks).
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization the liability with respect to which has not been satisfied;
(d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the definition
of "Offshore Rate."
"Event of Default" means any of the events or circumstances specified in
Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, and regulations
promulgated thereunder, in each case, as amended from time to time.
"Facility Fee" has the meaning specified in subsection 2.14(b).
-9-
16
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.14(a).
"FRB" means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
"FX Trading Office" means the Foreign Exchange Trading Center of the Agent,
or such other of the Agent's offices as the Agent may designate from time to
time.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 4.01.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of (a) in the case of
computations pursuant to Section 8.11, the date of this Agreement and (b) in all
other cases, the applicable date.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Honor Date" has the meaning specified in subsection 3.03(b).
-10-
17
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (f) all principal obligations with respect to Capital
Leases; (g) all indebtedness referred to in clauses (a) through (f) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (h) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g) above. In the event
any of the foregoing Indebtedness is limited to recourse against a particular
asset or assets of such Person, the amount of the corresponding Indebtedness
shall be equal to the lesser of the amount of such Indebtedness and the fair
market value of such asset or assets at the date for determination of the amount
of such Indebtedness. In addition, the amount of any Indebtedness which is also
a Contingent Obligation shall be determined as provided in the definition of
"Contingent Obligation."
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in subsection 7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means the ratio of (a) EBIT to (b) Consolidated
Interest Expense.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Committed Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Committed Loan, the last Business Day of each calendar
quarter and each date such Base Rate Committed Loan is converted into another
Type of Loan, provided, however, that if any Interest Period for an Offshore
Rate Loan or an Absolute Rate Bid Loan exceeds three months, the date that falls
three months after
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18
the beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date.
"Interest Period" means, (a) as to any Offshore Rate Loan, the period
commencing on the Borrowing Date such Loan is disbursed, or (in the case of any
Offshore Rate Committed Loan) on the Conversion/Continuation Date on which the
Loan is converted into or continued as an Offshore Rate Committed Loan, and
ending on the date one, two, three or six months thereafter as selected by the
Company in its Notice of Borrowing, Notice of Conversion/Continuation or
Competitive Bid Request, as the case may be; and (b) as to any Absolute Rate Bid
Loan, a period of not less than 7 days and not more than 183 days as selected by
the Company in the applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the following
Business Day unless, in the case of an Offshore Rate Loan, the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the Credit
Termination Date.
"Investments" has the meaning specified in Section 8.04.
"Invitation for Competitive Bids" means a solicitation for Competitive
Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Issuance Date" has the meaning specified in subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit; and
the terms "Issued," "Issuing" and "Issuance" have corresponding meanings.
-12-
19
"Issuing Bank" means, with respect to any Letter of Credit, BofA or any
Bank which at the request of the Company (and the consent of the Agent) agrees,
in such Bank's sole discretion, to become an Issuing Bank for purposes of
Issuing Letters of Credit pursuant to Article III.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or any of its Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in Section 11.17.
"L/C Advance" means each Bank's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which shall not have been reimbursed on the date when made
nor converted into a Committed Borrowing of Committed Loans under subsection
3.03(d).
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and the
commitment of the Banks severally to participate in, Letters of Credit from time
to time Issued or outstanding under Article III in an aggregate Dollar
Equivalent amount not to exceed on any date $50,000,000, as the same may be
reduced as a result of a reduction in the L/C Commitment pursuant to Section
2.08; provided that the L/C Commitment is a part of the combined Commitments,
rather than a separate, independent commitment.
"L/C Obligations" means, at any time, the sum of (a) the aggregate undrawn
Dollar Equivalent amount of all Letters of Credit then outstanding, plus (b) the
Dollar Equivalent amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications and any other document relating to any Letter of
Credit, including any of the Issuing Bank's standard form documents for letter
of credit issuances.
"Lending Office" means, as to any Bank, the office or offices of such Bank
specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be,
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on Schedule 11.02, or such other office or offices as such Bank may from time
to time notify the Company and the Agent.
"Letters of Credit" means any letters of credit (whether standby letters of
credit or commercial documentary letters of credit) Issued by the Issuing Bank
pursuant to Article III.
"Level" means, and includes, Xxxxx X, Xxxxx XX, Xxxxx XXX, Xxxxx XX and
Level V, whichever is in effect at the relevant time; provided, however, that in
the event that the Applicable Credit Ratings assigned by S&P and Moody's at any
time are in different Levels, and the differential is (x) one Level, then the
Level shall be deemed to be the Level of the higher Applicable Credit Rating or
(y) two or more Levels, then the Level shall be deemed be the Level directly
below the Level of the higher Applicable Credit Rating.
"Level I" shall exist at any time the Applicable Credit Rating of S&P is
equal to or greater than A- and the Applicable Credit Rating of Xxxxx'x is equal
to or greater than A3.
"Level II" shall exist at any time the Applicable Credit Rating of S&P is
equal to BBB+ and the Applicable Credit Rating of Xxxxx'x is equal to Baa1.
"Level III" shall exist at any time the Applicable Credit Rating of S&P is
equal to BBB and the Applicable Credit Rating of Xxxxx'x is equal to Baa2.
"Level IV" shall exist at any time the Applicable Credit Rating of S&P is
equal to BBB- and the Applicable Credit Rating of Xxxxx'x is equal to Baa3.
"Level V" shall exist at any time the Applicable Credit Rating of S&P is
less than BBB- and the Applicable Credit Rating of Xxxxx'x is less than Baa3.
"LIBOR" has the meaning specified in the definition of "Offshore Rate."
"LIBOR Auction" means a solicitation of Competitive Bids setting forth a
LIBOR Bid Margin pursuant to Section 2.07.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate based
upon LIBOR.
"LIBOR Bid Margin" has the meaning specified in subsection 2.07(c)(ii)(C).
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by, conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
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21
contingent or other agreement to provide any of the foregoing, but, in any such
case, not including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the Company under Article
II, and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter, the
L/C-Related Documents and all other documents, agreements or guaranties
delivered to the Agent or any Bank by the Company and/or its Subsidiaries in
connection herewith.
"Margin Stock" means "margin stock" as such term is defined in Regulation
G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Company to perform its obligations under any Loan Document and to avoid any
Event of Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company of any of the Loan
Documents.
"Material Subsidiary" means, at any time, any Subsidiary of the Company the
total assets of which constitute 10% or more of the total consolidated assets of
the Company and its Subsidiaries, in each case, determined in accordance with
GAAP.
"Minimum Tranche" means, in respect of Loans comprising part of the same
Borrowing, or to be converted or continued under Section 2.04, (a) in the case
of Base Rate Committed Loans, $5,000,000 or any multiple of $1,000,000 in excess
thereof, and (b) in the case of Offshore Rate Committed Loans, the Dollar
Equivalent amount of $10,000,000 or any multiple of 1,000,000 units of the
Applicable Currency in excess thereof.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor thereto.
"Multiemployer Plan" means a "multiemployer plan", within the meaning of
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Notes" means the Committed Loan Notes and the Bid Loan Notes.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B.
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22
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company to any
Bank, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment pursuant to subsection 11.08(a)),
absolute or contingent, due or to become due, now existing or hereafter arising.
"Offshore Currency" means, at any time, German deutsche marks, British
pounds sterling and French francs, and any Agreed Alternative Currency.
"Offshore Currency Loan" means any Offshore Rate Committed Loan denominated
in an Offshore Currency.
"Offshore Currency Loan Sublimit" means, as to all Offshore Currencies in
the aggregate, $50,000,000.
"Offshore Rate" means, for any Interest Period, with respect to Offshore
Rate Committed Loans comprising part of the same Borrowing, the rate of interest
per annum (rounded upward to the next 1/16th of 1%) determined by the Agent as
follows:
Offshore Rate = LIBOR
--------------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"LIBOR" means the rate of interest per annum determined by the Agent
to be the rate of interest per annum at which deposits, in the Applicable
Currency in the approximate amount of the Loan to be made or continued as,
or converted into, an Offshore Rate Loan by the Agent and having a maturity
comparable to such Interest Period, would be offered to major banks in the
London interbank market at their request at approximately 11:00 a.m.
(London time) two Banking Days prior to the commencement of such Interest
Period rounded upwards to the next 1/16th of 1%.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Committed Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed Loan that bears interest
based on the Offshore Rate.
-16-
23
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore Rate
Committed Loan.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"originating Bank" has the meaning specified in subsection 11.08(d).
"Other Taxes" means any present or future stamp, court or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents.
"Overnight Rate" means, for any day, the rate of interest per annum at
which overnight deposits in the Applicable Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by BofA's London Branch to major banks in the London or
other applicable offshore interbank market.
"Participant" has the meaning specified in subsection 11.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA (other than a Multiemployer Plan) which the Company
sponsors, maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 8.01.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
which the Company sponsors or maintains or to which the Company makes, is
making, or is obligated to make contributions (other than a Multiemployer Plan)
and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks.
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"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Required Banks" means (a) at any time prior to the Credit Termination
Date, Banks then holding at least 51% of the then aggregate unpaid principal
amount of the Loans, or, if no Loans are outstanding, Banks then having at least
51% of the aggregate amount of the Commitments and (b) at all other times, Banks
then holding at least 51% of the then aggregate unpaid principal amount of the
Credit Extensions.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, president or any
vice president of the Company, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Company, or any
other officer having substantially the same authority and responsibility.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx
Companies, and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Offshore Currency, same day or other funds as may be reasonably
determined by the Agent to be customary in the place of disbursement or payment
for the settlement of international banking transactions in the relevant
Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Spot Rate" for a currency means the rate quoted by the Agent as the spot
rate for the purchase by the Agent of such currency with another currency
through its FX Trading Office at approximately 11:00 a.m. (Chicago time) on the
date two Banking Days prior to the date as of which the foreign exchange
computation is made.
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
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"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds, performance bonds and similar instruments.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of which such
Bank or the Agent, as the case may be, is organized or maintains a lending
office.
"Total Capitalization" means, at any time, the sum at such time of (a) the
Company's total stockholders' equity plus (b) Total Debt.
"Total Debt" means, at any time, the sum of the current and long-term
indebtedness obligations for money borrowed, drawn and unreimbursed letters of
credit, drawn and unreimbursed surety bonds, the amount of mandatory redeemable
preferred stock of the Company, Capital Lease Obligations and, without
duplication, Contingent Obligations in respect of any of the foregoing, in each
case, of the Company and its Subsidiaries on a consolidated basis.
"Type" has the meaning specified in the definition of "Committed Loan."
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
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(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks by way of
consent, approval or waiver shall be deemed modified by the phrase "in its/their
sole discretion".
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and the other parties, and are the products of all parties. Accordingly, it
shall not be construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
1.04 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any Offshore
Currency or other currency, shall be determined at the Spot Rate.
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ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans on a revolving credit basis
to the Company (each such loan, a "Committed Loan") from time to time on any
Business Day during the period from the Closing Date to, but not including, the
Credit Termination Date, in an aggregate principal Dollar Equivalent amount not
to exceed at any time outstanding the amount set forth opposite the Bank's name
in Schedule 2.01 under the heading "Commitment" (such amount as the same may be
reduced pursuant to Section 2.08 or as a result of one or more assignments
pursuant to Section 11.08, the Bank's "Commitment"); provided, however, that,
after giving effect to any Committed Borrowing of Committed Loans, the aggregate
principal Dollar Equivalent amount of all outstanding Committed Loans, together
with the aggregate principal amount of all Bid Loans outstanding and L/C
Obligations, shall not exceed the combined Commitments; and provided further,
that after giving effect to any Committed Borrowing of Offshore Currency Loans,
the aggregate principal Dollar Equivalent amount of all outstanding Offshore
Currency Loans shall not exceed the Offshore Currency Loan Sublimit. Within the
limits of each Bank's Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01, prepay pursuant to
Section 2.09 and reborrow pursuant to this Section 2.01.
2.02 Loan Accounts. (a) The Loans made by each Bank shall be evidenced by
one or more loan accounts or records maintained by such Bank in the ordinary
course of business. The loan accounts or records maintained by the Agent and
each Bank shall be prima facie evidence of the amount of the Loans made by the
Banks to the Company and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Company hereunder to pay any amount owing with respect to
the Loans.
(b) Upon the request of any Bank made through the Agent, the
Committed Loans made by such Bank may be evidenced by one or more notes in
substantially the form of Exhibit I hereto ("Committed Loan Notes") and the Bid
Loans made by such Bank may be evidenced by one or more notes in substantially
the form of Exhibit J hereto ("Bid Loan Notes"), instead of or in addition to
loan accounts. Each such Bank shall endorse on the schedules annexed to its
Note(s) the date, amount and maturity of each Loan made by it and the amount of
each payment of principal made by the Company with respect thereto. Each such
Bank is irrevocably authorized by the Company to endorse its Note(s) and each
Bank's record shall be deemed prima facie correct; provided, however, that the
failure of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank to pay principal or
interest.
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2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to (i) 10:30 a.m.
(Chicago time) four Business Days prior to the requested Borrowing Date, in the
case of Offshore Currency Loans; (ii) 11:30 a.m. (Chicago time) three Business
Days prior to the requested Borrowing Date, in the case of Offshore Rate Loans
denominated in Dollars; and (iii) 10:30 a.m. (Chicago time) on the requested
Borrowing Date, in the case of Base Rate Committed Loans, in any such case,
specifying:
(A) the amount of the Committed Borrowing, which shall be
in an aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Committed Borrowing;
(D) the duration of the Interest Period applicable to any
Offshore Rate Loans included in such notice. If the Notice of
Borrowing fails to specify the duration of the Interest Period for any
Committed Borrowing comprised of Offshore Rate Loans, such Interest
Period shall be one month; and
(E) in the case of a Committed Borrowing comprised of
Offshore Currency Loans, the Applicable Currency;
provided, however, that if so requested by the Agent, all Committed Borrowings
during the first 60 days following the Closing Date shall have the same
Interest Period and shall be, at the Borrower's option, Base Rate Committed
Loans or Offshore Rate Committed Loans in Dollars for Interest Periods no
longer than one month.
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof and of the amount of such Bank's Pro Rata
Share of the Committed Borrowing. In the case of a Committed Borrowing
comprised of Offshore Currency Loans, such notice will provide the approximate
amount of each Bank's Pro Rata Share of the Committed Borrowing, and the Agent
will, upon the determination of the Dollar Equivalent amount of the Committed
Borrowing as specified in the Notice of Borrowing, promptly notify each Bank of
the exact Dollar Equivalent amount of such Bank's Pro Rata Share of the
Committed Borrowing. The Dollar Equivalent amount of any Borrowing in an
Offshore Currency will be determined by the Agent for such Committed Borrowing
on the Computation Date therefor in accordance with subsection 2.05(a).
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office on the Borrowing Date requested by the Company in Same
Day Funds and in the requested currency (i) in the case of a Committed Borrowing
comprised of Loans in Dollars, by 12:00 noon (Chicago
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time) and (ii) in the case of a Committed Borrowing comprised of Offshore
Currency Loans, by such time as the Agent may specify. The proceeds of all
such Committed Loans will then be made available to the Company by the Agent at
such office by crediting the account of the Company on the books of BofA with
the aggregate of the amounts made available to the Agent by the Banks and in
like funds as received by the Agent.
(d) After giving effect to any Committed Borrowing, unless the
Agent shall otherwise consent, there may not be more than nine (9) different
Interest Periods in effect in the aggregate for all Loans.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The Company may, upon irrevocable written notice to the Agent
in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest Period,
in the case of any other Type of Committed Loans denominated in Dollars, to
convert any such Committed Loans (or any part thereof in an amount not less
than the Minimum Tranche) into Committed Loans in Dollars of any other
Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Committed Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less than the Minimum
Tranche);
provided, that if at any time the aggregate Dollar Equivalent amount of
Offshore Currency Loans in respect of any Committed Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less than $5,000,000,
such Offshore Currency Loans shall automatically convert into Base Rate
Committed Loans, and on and after such date the right of the Company to
continue such Committed Loans as, and convert such Committed Loans into,
Offshore Currency Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation
to be received by the Agent not later than (i) 11:30 a.m. (Chicago time) at
least three Business Days in advance of the Conversion/Continuation Date, if the
Committed Loans are to be converted into or continued as Offshore Rate Committed
Loans denominated in Dollars; (ii) 10:30 a.m. (Chicago time) at least four
Business Days in advance of the continuation date, if the Committed Loans are to
be continued as Offshore Currency Loans; and (iii) 10:30 a.m. (Chicago time) on
the Conversion/Continuation Date, if the Committed Loans are to be converted
into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
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(B) the aggregate amount of Committed Loans to be
converted or continued;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans in Dollars, the Company has failed to timely
select a new Interest Period to be applicable to such Offshore Rate Committed
Loans or if any Default or Event of Default then exists, unless, in either case,
the Company has elected to and does repay such Committed Loans on or prior to
the expiration date of such Interest Period, the Company shall be deemed to have
elected to convert such Offshore Rate Committed Loans into Base Rate Committed
Loans effective as of the expiration date of such Interest Period. If the
Company has failed to select a new Interest Period to be applicable to Offshore
Currency Loans prior to the fourth Business Day in advance of the expiration
date of the current Interest Period applicable thereto as provided in subsection
2.04(b), or if any Default or Event of Default shall then exist, the Company
shall be deemed to have elected to continue such Offshore Currency Loans on the
basis of a one month Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Committed Loans
with respect to which the notice was given held by each Bank.
(e) Unless the Required Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have
(i) a Committed Loan in Dollars converted into or continued as an Offshore Rate
Committed Loan or (ii) an Offshore Currency Loan continued on the basis of an
Interest Period exceeding one month.
(f) After giving effect to any conversion or continuation of
Committed Loans, unless the Agent shall otherwise consent, there may not be more
than nine (9) different Interest Periods in effect in the aggregate for all
Loans.
2.05 Utilization of Commitments in Offshore Currencies.
(a) The Agent will determine the Dollar Equivalent amount with
respect to any (i) Committed Borrowing comprised of Offshore Currency Loans as
of the requested Borrowing Date, (ii) outstanding Offshore Currency Loans and
L/C Obligations denominated in a currency other than Dollars as of the last
Banking Day of each month and (iii) outstanding Offshore Currency Loans and L/C
Obligations denominated in a currency other than Dollars as of any
redenomination
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date pursuant to this Section 2.05 or Section 4.05 (each such date under clauses
(i) through (iii) a "Computation Date").
(b) In the case of a proposed Borrowing comprised of Offshore
Currency Loans, the Banks shall be under no obligation to make Offshore Currency
Loans in the requested Offshore Currency as part of such Committed Borrowing if
the Agent has received notice from any of the Banks by 5:00 p.m. (Chicago time)
four Business Days prior to the day of such Borrowing that such Bank cannot
provide Committed Loans in the requested Offshore Currency, in which event the
Agent will give notice to the Company no later than 12:00 noon (Chicago time) on
the third Business Day prior to the requested date of such Committed Borrowing
that the Committed Borrowing in the requested Offshore Currency is not then
available, and notice thereof also will be given promptly by the Agent to the
Banks. If the Agent shall have so notified the Company that any such Committed
Borrowing in a requested Offshore Currency is not then available, the Company
may, by notice to the Agent not later than 5:00 p.m. (Chicago time) two
Business Days prior to the requested date of such Committed Borrowing, withdraw
the Notice of Borrowing relating to such requested Committed Borrowing. If the
Company does so withdraw such Notice of Borrowing, the Committed Borrowing
requested therein shall not occur and the Agent will promptly so notify each
Bank. If the Company does not so withdraw such Notice of Borrowing, the Agent
will promptly so notify each Bank and such Notice of Borrowing shall be deemed
to be a Notice of Borrowing that requests a Committed Borrowing comprised of
Base Rate Committed Loans in an aggregate amount equal to the amount of the
originally requested Borrowing as expressed in Dollars in the Notice of
Borrowing; and in such notice by the Agent to each Bank the Agent will state
such aggregate amount of such Committed Borrowing in Dollars and such Bank's Pro
Rata Share thereof.
(c) In the case of a proposed continuation of Offshore Currency
Loans for an additional Interest Period pursuant to Section 2.04, the Banks
shall be under no obligation to continue such Offshore Currency Loans if the
Agent has received notice from any of the Banks by 5:00 p.m. (Chicago time)
four Business Days prior to the day of such continuation that such Bank cannot
continue to provide Committed Loans in the relevant Offshore Currency, in which
event the Agent will give notice to the Company not later than 12:00 noon
(Chicago time) on the third Business Day prior to the requested date of such
continuation that the continuation of such Offshore Currency Loans in the
relevant Offshore Currency is not then available, and notice thereof also will
be given promptly by the Agent to the Banks. If the Agent shall have so
notified the Company that any such continuation of Offshore Currency Loans is
not then available, any Notice of Continuation/Conversion with respect thereto
shall be deemed withdrawn and such Offshore Currency Loans shall be
redenominated into Base Rate Committed Loans in Dollars with effect from the
last day of the Interest Period with respect to any such Offshore Currency
Loans. The Agent will promptly notify the Company and the Banks of any such
redenomination and in such notice by the Agent to each Bank the Agent will state
the aggregate Dollar Equivalent amount of the redenominated Offshore Currency
Loans as of the Computation Date with respect thereto and such Bank's Pro Rata
Share thereof.
(d) Notwithstanding anything herein to the contrary, during the
existence of a Default or an Event of Default, upon the request of the Required
Banks, all or any part of any
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outstanding Offshore Currency Loans shall be redenominated and converted into
Base Rate Committed Loans in Dollars with effect from the last day of the
Interest Period with respect to any such Offshore Currency Loans. The Agent
will promptly notify the Company of any such redenomination and conversion
request.
(e) The Company shall be entitled to request that Committed Loans
hereunder also be permitted to be made in any other lawful currency (other than
Dollars), in addition to the currencies specified in the definition of "Offshore
Currency" herein, that in the opinion of the Required Banks is at such time
freely traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "Agreed Alternative
Currency"). The Company shall deliver to the Agent any request for designation
of an Agreed Alternative Currency in accordance with Section 11.02, to be
received by the Agent not later than 12:00 noon (Chicago time) at least 10
Business Days in advance of the date of any Committed Borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Agent will promptly notify the Banks thereof, and each Bank
will use its best efforts to respond to such request within two Business Days of
receipt thereof. Each Bank may grant or accept such request in its sole
discretion. The Agent will promptly notify the Company of the acceptance or
rejection of any such request.
2.06 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bank severally agrees that the Company may, as set forth in
Section 2.07, from time to time request the Banks prior to the Credit
Termination Date to submit offers to make Bid Loans in Dollars to the Company;
provided, however, that the Banks may, but shall have no obligation to, submit
such offers and the Company may, but shall have no obligation to, accept any
such offers; and provided, further, that at no time shall (a) the outstanding
aggregate principal amount of all Bid Loans made by all Banks, plus the
outstanding aggregate principal Dollar Equivalent amount of all Committed Loans
made by all Banks together with L/C Obligations exceed the combined Commitments;
or (b) the number of Interest Periods for Bid Loans then outstanding plus the
number of Interest Periods for Committed Loans then outstanding exceed nine (9)
in the aggregate.
2.07 Procedure for Bid Borrowings. (a) When the Company wishes to
request the Banks to submit offers to make Bid Loans hereunder, it shall
transmit to the Agent by telephone call followed promptly by facsimile
transmission a notice in substantially the form of Exhibit G (a "Competitive Bid
Request") so as to be received no later than 12:00 noon (Chicago time) (x) four
Business Days prior to the date of a proposed Bid Borrowing in the case of a
LIBOR Auction, or (y) one Business Day prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $5,000,000 or in multiples of $1,000,000 in excess
thereof;
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(iii) whether the Competitive Bids requested are to be for LIBOR Bid
Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period" herein.
Subject to subsection 2.07(c), the Company may not request Competitive Bids for
more than three (3) Interest Periods in a single Competitive Bid Request and
may not request Competitive Bids more than once in any period of five (5)
Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Banks by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an invitation by the Company to each
Bank to submit Competitive Bids offering to make the Bid Loans to which such
Competitive Bid Request relates in accordance with this Section 2.07.
(c) (i) Each Bank may at its discretion submit a Competitive Bid
containing an offer or offers to make Bid Loans in response to any Invitation
for Competitive Bids. Each Competitive Bid must comply with the requirements of
this subsection 2.07(c) and must be submitted to the Agent by facsimile
transmission at the Agent's office for notices set forth on the signature pages
hereto not later than (1) 8:30 a.m. (Chicago time) three Business Days prior to
the proposed date of Borrowing, in the case of a LIBOR Auction or (2) 8:30 a.m.
(Chicago time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction; provided that Competitive Bids submitted by the Agent (or any
Affiliate of the Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Agent or such Affiliate notifies the Company of the terms
of the offer or offers contained therein not later than (A) 8:15 a.m. (Chicago
time) three Business Days prior to the proposed date of Borrowing, in the case
of a LIBOR Auction or (B) 8:15 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit H, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be equal
to, greater than or less than the Commitment of the quoting Bank, (y)
must be $5,000,000 or in multiples of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects a LIBOR Auction, the margin
above or below LIBOR (the "LIBOR Bid Margin") offered for each such Bid
Loan, expressed in multiples of 1/1000th of one (1) percent to be added to
or subtracted from the applicable LIBOR and the Interest Period applicable
thereto;
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(D) in case the Company elects an Absolute Rate Auction, the
rate of interest per annum expressed in multiples of 1/1000th of one
(1) percent (the "Absolute Rate") offered for each such Bid Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by the quoting
Bank with respect to each Interest Period specified in the related
Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit H or does
not specify all of the information required by subsection (c)(ii) of
this Section;
(B) contains qualifying, conditional or similar language
(except with respect to the aggregate amount of Bid Loans that may be
accepted);
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i).
(d) Promptly on receipt and not later than 9:00 a.m. (Chicago time)
three Business Days prior to the proposed date of Borrowing in the case of a
LIBOR Auction, or 9:00 a.m. (Chicago time) on the proposed date of Borrowing, in
the case of an Absolute Rate Auction, the Agent will notify the Company of the
terms (i) of any Competitive Bid submitted by a Bank that is in accordance with
subsection 2.07(c), and (ii) of any Competitive Bid that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid submitted by such Bank
with respect to the same Competitive Bid Request. Any such subsequent
Competitive Bid shall be disregarded by the Agent unless such subsequent
Competitive Bid is submitted solely to correct a manifest error in such former
Competitive Bid and only if received within the times set forth in subsection
2.07(c)(i). The Agent's notice to the Company shall specify (1) the aggregate
principal amount of Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Request; and (2) the
respective principal amounts and LIBOR Bid Margins or Absolute Rates, as the
case may be, so offered. Subject only to the provisions of Sections 4.02, 4.05
and 5.02 hereof and the provisions of this subsection (d), any Competitive Bid
shall be irrevocable except with the written consent of the Agent given on the
written instructions of the Company.
(e) Not later than 9:30 a.m. (Chicago time) three Business Days
prior to the proposed date of Borrowing, in the case of a LIBOR Auction, or 9:30
a.m. (Chicago time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, the Company shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection 2.07(d).
The Company shall be under no obligation to accept any offer and may choose to
reject all offers. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers
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for each Interest Period that is accepted. The Company may accept any
Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing must be $5,000,000 or
in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of ascending
LIBOR Bid Margins or Absolute Rates within each Interest Period, as the
case may be; and
(iv) the Company may not accept any offer that is described in
subsection 2.07(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Banks with the same LIBOR Bid
Margins or Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such offers are accepted for the
related Interest Period, the principal amount of Bid Loans in respect of which
such offers are accepted shall be allocated by the Company among such Banks as
nearly as possible (in such multiples, not less than $1,000,000, as the Company
may deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determination by the Company or the Agent of the amounts of Bid Loans
to be allocated among such Banks shall be conclusive in the absence of manifest
error.
(g) (i) The Agent will promptly notify each Bank having submitted a
Competitive Bid if its offer has been accepted and, if its offer has been
accepted, of the amount of the Bid Loan or Bid Loans to be made by it on the
date of the Bid Borrowing.
(ii) Each Bank, which has received notice pursuant to subsection
2.07(g)(i) that its Competitive Bid has been accepted, shall make the
amounts of such Bid Loans in funds immediately available to the Agent for
the account of the Company at the Agent's Payment Office, by 2:00 p.m.
(Chicago time) on such date of Bid Borrowing.
(iii) Promptly following each Bid Borrowing, the Agent shall notify
each Bank of the ranges of bids submitted and the highest and lowest Bids
accepted for each Interest Period requested by the Company and the
aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Banks shall furnish such
information to the Agent as the Agent may request relating to the making of
Bid Loans, including the amounts, interest rates, dates of borrowings and
maturities thereof, for purposes of the allocation of amounts received from
the Company for payment of all amounts owing hereunder.
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(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of Borrowing
all applicable conditions to funding referenced in Sections 4.02, 4.05 and 5.02
hereof are satisfied, the Banks whose offers the Company has accepted will fund
each Bid Loan so accepted. Nothing in this Section 2.07 shall be construed as a
right of first offer in favor of the Banks or to otherwise limit the ability of
the Company to request and accept credit facilities from any Person (including
any of the Banks), provided that no Default or Event of Default would otherwise
arise or exist as a result of the Company executing, delivering or performing
under such credit facilities.
2.08 Voluntary Termination or Reduction of Commitments. The Company may,
upon not less than five Business Days' prior notice to the Agent, terminate the
Commitments, or permanently reduce the Commitments by an aggregate minimum
Dollar Equivalent amount of $5,000,000 or any Dollar Equivalent multiple of
$1,000,000 in excess thereof; unless, after giving effect thereto and to any
prepayments of Committed Loans made on the effective date thereof, the then
outstanding principal Dollar Equivalent amount of the Committed Loans, together
with the aggregate principal amount of all Bid Loans outstanding and L/C
Obligations, would exceed the amount of the combined Commitments then in effect.
Once reduced in accordance with this Section 2.08, the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each Bank
according to its Pro Rata Share. All accrued Facility Fees to, but not
including the effective date of any reduction or termination of Commitments,
shall be paid on the effective date of such reduction or termination.
2.09 Optional Prepayments. (a) Subject to Section 4.04, the Company may,
at any time or from time to time, upon irrevocable notice to the Agent as
described below, ratably prepay Committed Loans in whole or in part, in minimum
Dollar Equivalent amounts of $5,000,000 or any Dollar Equivalent multiple of
$1,000,000 in excess thereof or such other amount necessary to repay any
Offshore Currency Loan in full. The Company shall deliver a notice of
prepayment in accordance with Section 11.02 to be received by the Agent not
later than 10:30 a.m. (Chicago time) (a) at least three Business Days in advance
of the prepayment date if the Committed Loans to be prepaid are Offshore
Currency Loans, (b) at least two Business Days in advance of the prepayment date
if the Committed Loans to be prepaid are Offshore Rate Committed Loans in
Dollars, and (iii) on the date of the prepayment date if the Committed Loans to
be prepaid are Base Rate Committed Loans. Such notice of prepayment shall
specify the date and amount of such prepayment and whether such prepayment is of
Base Rate Committed Loans or Offshore Rate Committed Loans, or any combination
thereof, and the Applicable Currency. Such notice shall not thereafter be
revocable by the Company and the Agent will promptly notify each Bank thereof
and of such Bank's Pro Rata Share of such prepayment. If such notice is given by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to each such date on the amount prepaid and any
amounts required pursuant to Section 4.04.
(b) Bid Loans may not be voluntarily prepaid.
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2.10 Currency Exchange Fluctuations. Subject to Section 4.04, if on any
Computation Date the Agent shall have determined that the aggregate Dollar
Equivalent principal amount of all Committed Loans, together with the aggregate
principal amount of all Bid Loans outstanding and L/C Obligations, then
outstanding exceeds the combined Commitments of the Banks by more than
$1,000,000, due to a change in applicable rates of exchange between Dollars and
Offshore Currencies, then the Agent shall give notice to the Company that a
prepayment is required under this Section 2.10, and the Company agrees thereupon
to make prepayments of Committed Loans within one Business Day of such notice
such that, after giving effect to such prepayment the aggregate Dollar
Equivalent amount of all Committed Loans, Bid Loans and L/C Obligations does not
exceed the combined Commitments.
2.11 Mandatory Prepayments of Loans. Subject to Section 4.04, if on any
date the Dollar Equivalent of all Committed Loans then outstanding, together
with the aggregate principal amount of all Bid Loans outstanding plus all L/C
Obligations, exceeds the aggregate Commitments (other than as a result of
currency exchange fluctuations), the Company shall immediately, and without
notice or demand, prepay the outstanding principal amount of the Committed Loans
in an amount equal to the lesser of such excess and the amount of the
outstanding Committed Loans and, if any excess shall still remain, shall Cash
Collateralize the L/C Obligations to the extent of such remaining excess.
2.12 Repayment.
(a) The Revolving Credit. The Company shall repay to the Banks on
the Credit Termination Date the aggregate principal amount of Committed Loans
outstanding on such date.
(b) Bid Loans. The Company shall repay each Bid Loan on the last
day of the relevant Interest Period.
2.13 Interest.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate plus the Applicable Margin or the Base Rate, as the
case may be (and subject to the Company's right to convert to other Types of
Loans under Section 2.04). Each Bid Loan shall bear interest on the outstanding
principal amount thereof from the relevant Borrowing Date at a rate per annum
equal to LIBOR plus the LIBOR Bid Margin, or at the Absolute Rate, as the case
may be.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans under Section 2.09, 2.10 or 2.11 for the portion
of the Committed Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default, interest shall
also be paid on demand of the Agent at the request or with the consent of the
Required Banks.
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(c) Notwithstanding subsections 2.13(a) and 3.03(d), while any
Event of Default exists, for the period commencing after the Company's receipt
of notice from the Agent at the request, or with the consent, of the Required
Banks or after acceleration, the Company shall pay interest (after as well as
before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Loans and other Obligations, at a rate per
annum which is determined by adding 2% per annum to the Applicable Margin then
in effect for such Loans and, in the case of Obligations not subject to an
Applicable Margin, at a rate per annum equal to the Base Rate plus 2%; provided,
however, that, on and after the expiration of any Interest Period applicable to
any Offshore Rate Loan outstanding on the date of occurrence of such Event of
Default for the period commencing after the Company's receipt of notice from the
Agent at the request, or with the consent, of the Required Banks or
acceleration, the principal amount of such Loan shall, during the continuation
of such Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
Obligations of the Company to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
2.14 Fees.
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee and Bid Loan fee to the Agent for the Agent's own account, as
required by the letter agreement ("Fee Letter") between the Company and the
Arranger and Agent dated March 21, 1996.
(b) Facility Fee. The Company shall pay to the Agent for the
account of each Bank a facility fee (the "Facility Fee") in a per annum amount
equal to the Applicable Margin for the Facility Fee times the daily average
Commitment of such Bank (regardless of usage) from the Closing Date to the
Credit Termination Date and shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing on
June 30, 1997, through the Credit Termination Date, with the final payment to be
made on the Credit Termination Date; provided that, in connection with any
reduction or termination of Commitments under Section 2.08, the accrued Facility
Fee calculated for the period ending on such date shall also be paid on the date
of such reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination date to
such quarterly payment date. The Facility Fee provided in this subsection shall
accrue until the Credit Termination Date, including at any time during which
one or more conditions in Article V are not met.
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2.15 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Committed Loans,
Absolute Rate Bid Loans and fees other than the Facility Fee shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All computations of interest for Offshore Rate Loans, LIBOR Bid Loans
and the Facility Fee shall be made on the basis of a 360-day year and actual
days elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year). Interest and fees shall accrue during each period
during which interest or such fees are computed from, and including, the first
day thereof to, but excluding, the last day thereof.
(b) Each determination of an interest rate or a Dollar Equivalent
amount by the Agent shall be rebuttably presumptive evidence thereof in the
absence of manifest error. The Agent will, at the request of the Company or any
Bank, deliver to the Company or the Bank, as the case may be, a statement
showing the quotations used by the Agent in determining any interest rate or
Dollar Equivalent amount.
2.16 Payments by the Company.
(a) All payments to be made by the Company shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to the Agent for the account
of the Banks at the Agent's Payment Office, and, with respect to principal of,
interest on, and any other amounts relating to, any Offshore Currency Loan,
shall be made in the Offshore Currency in which such Loan is denominated or
payable, and, with respect to all other amounts payable hereunder, shall be made
in Dollars. Such payments shall be made in Same Day Funds, and (i) in the case
of Offshore Currency payments, no later than such time on the dates specified
herein as may be determined by the Agent to be necessary for such payment to be
credited on such date in accordance with normal banking procedures in the place
of payment, and (ii) in the case of any Dollar payments, no later than 12:00
noon (Chicago time) on the date specified herein. The Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such principal, interest, fees or other amounts,
in like funds as received. Any payment which is received by the Agent later
than 12:00 noon (Chicago time), or later than the time specified by the Agent as
provided in clause (i) above (in the case of Offshore Currency payments), shall
be deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in Same Day Funds and
the Agent may (but shall not be so required), in reliance upon such
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assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate or, in the case of a payment in an Offshore Currency, the Overnight
Rate, for each day from the date such amount is distributed to such Bank until
the date repaid.
2.17 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to
the Closing Date or, with respect to any Committed Borrowing after the Closing
Date, at least one Business Day prior to the date of such Committed Borrowing,
that such Bank will not make available as and when required hereunder to the
Agent for the account of the Company the amount of that Bank's Pro Rata Share of
the Committed Borrowing, the Agent may assume that each Bank has made such
amount available to the Agent in Same Day Funds on the Borrowing Date and the
Agent may (but shall not be so required), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the Agent in
Same Day Funds and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate or, in the case of any Committed Borrowing consisting
of Offshore Currency Loans, the Overnight Rate, for each day during such period.
A notice of the Agent submitted to any Bank with respect to amounts owing under
this subsection 2.17(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute such
Bank's Loan on the date of Committed Borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the Business
Day following the Borrowing Date, the Agent will notify the Company of such
failure to fund and, upon demand by the Agent, the Company shall pay such amount
to the Agent for the Agent's account, together with interest thereon for each
day elapsed since the date of such Committed Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Committed Loans
comprising such Committed Borrowing.
(b) The failure of any Bank to make any Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Committed Loan to be made by such
other Bank on any Borrowing Date.
2.18 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Committed Loans made by them as shall be necessary to cause such purchasing Bank
to share the excess payment pro rata with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each other
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Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.10) with respect to such participation as fully as if such Bank
were the direct creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this Section 2.18
and will in each case notify the Banks following any such purchases or
repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein (i) the Issuing
Bank agrees, (A) from time to time on any Business Day during the period from
the Closing Date to, but not including, the Credit Termination Date to issue
Letters of Credit for the account of the Company, and to amend or renew Letters
of Credit previously issued by it, in accordance with subsections 3.02(c) and
3.02(d), and (B) to honor drafts under the Letters of Credit; and (ii) the Banks
severally agree to participate in Letters of Credit Issued for the account of
the Company; provided that the Issuing Bank shall not be obligated to Issue, and
no Bank shall be obligated to participate in, any Letter of Credit if as of the
date of Issuance of such Letter of Credit (the "Issuance Date"): (A) the
Effective Amount of all L/C Obligations plus the Effective Amount of all
Committed Loans plus the principal amount of all outstanding Bid Loans exceeds
the aggregate Commitments; (B) the participation of any Bank in the Effective
Amount of all L/C Obligations plus the Effective Amount of the Committed Loans
of such Bank exceeds such Bank's Commitment or (C) the Effective Amount of all
L/C Obligations exceeds the L/C Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, the Company
may, during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank shall be under no obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
the Issuing Bank from Issuing such Letter of Credit, or any Requirement of
Law applicable to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority with
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jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the Issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the date of this Agreement, or shall impose
upon the Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the date of this Agreement and which the Issuing Bank in good
xxxxx xxxxx material to it and for which the Issuing Bank is not
compensated hereunder.
(ii) the Issuing Bank has received written notice from any Bank, the
Agent or the Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is (A) more
than 360 days after the date of Issuance, unless the Required Banks and the
Issuing Bank have approved such expiry date in writing, or (B) after the
Credit Termination Date;
(iv) any requested Letter of Credit is not in a form reasonably
acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall
violate any applicable policies of the Issuing Bank;
(v) any standby Letter of Credit is for the purpose of supporting
the issuance of any letter of credit by any other Person; or
(vi) such Letter of Credit is in a face amount less than $5,000,000
(or such lesser amount acceptable to the Agent and the Issuing Bank), or to
be denominated in a currency other than an Applicable Currency.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least three Business Days (or such shorter time as
the Issuing Bank may agree in a particular instance in its sole discretion)
prior to the proposed date of issuance. Each such request for issuance of a
Letter of Credit shall be by facsimile or electronic transmission, confirmed
immediately in an original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing Bank: (i) the proposed
date of issuance of the Letter of Credit (which shall be a Business Day); (ii)
the face amount and Applicable Currency of the Letter of Credit; (iii) the
expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Issuing Bank may reasonably
require.
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(b) If the Agent is not the Issuing Bank, by 12:00 noon (Chicago
time) on the Business Day next preceding the requested date of issuance of a
Letter of Credit, the Issuing Bank will confirm with the Agent (by telephone or
in writing) that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the Company and, if not, the Issuing Bank will
provide the Agent with a copy thereof. Unless the Issuing Bank has received
notice on or before the Business Day immediately preceding the date the Issuing
Bank is to issue a requested Letter of Credit from the Agent (i) directing the
Issuing Bank not to issue such Letter of Credit because such issuance is not
then permitted under subsection 3.01(a)(ii) as a result of the limitations set
forth in clauses (A), (B) or (C) thereof or subsection 3.01(b)(ii); or (ii) that
one or more conditions specified in Article V are not then satisfied; then,
subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue a Letter of Credit for the account of the Company in
accordance with the Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Credit Termination Date, the Issuing Bank will, upon the written
request of the Company received by the Issuing Bank (with a copy sent by the
Company to the Agent) at least two Business Days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole discretion) prior to
the proposed date of amendment, amend any Letter of Credit issued by it. Each
such request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of an L/C
Amendment Application and shall specify in form and detail satisfactory to the
Issuing Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Bank may reasonably require. The Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to issue such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(d) The Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Credit Termination Date, at the option of
the Company and upon the written request of the Company received by the Issuing
Bank (with a copy sent by the Company to the Agent) at least two Business Days
(or such shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of notification of renewal, the
Issuing Bank shall be entitled to authorize the automatic renewal of any Letter
of Credit issued by it; provided that the Issuing Bank shall not be entitled to
authorize such automatic renewal if, at least one Business Day prior to the
proposed date of notification of renewal, it shall have received notice from the
Agent (i) directing the Issuing Bank not to renew such Letter of Credit because
such renewal is not then permitted under subsection 3.01(a)(ii) as a result of
the limitations set forth in clauses (A), (B) and (C) thereof or subsection
3.01(b)(ii); or (ii) that one or more conditions specified in Article V are not
then satisfied. Each such request for renewal of a Letter of Credit shall be
made by facsimile transmission, confirmed immediately in an original writing, in
the form of an L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (I) the Letter of Credit to be renewed; (II)
the proposed date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (III) the revised expiry date of the Letter of Credit;
and
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(IV) such other matters as the Issuing Bank may require. The Issuing Bank shall
be under no obligation to renew, and no Bank shall be obligated to participate
in, any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to issue or amend, and no Bank would be obligated to participate in,
such Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
renewal of the Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Bank would be required to
authorize the automatic renewal of such Letter of Credit in accordance with this
subsection 3.02(d) upon the request of the Company but the Issuing Bank shall
not have received any L/C Amendment Application from the Company with respect to
such renewal or other written direction by the Company with respect thereto, the
Issuing Bank shall nonetheless renew such Letter of Credit, and the Company and
the Banks hereby authorize such renewal, and, accordingly, the Issuing Bank
shall be deemed to have received an L/C Amendment Application from the Company
requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by the
Agent at the direction of the Required Banks), deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Credit Termination Date.
(f) This Agreement shall control in the event of any conflict with
any L/C-Related Document (other than any Letter of Credit). In addition, unless
the Company and the Issuing Bank shall otherwise expressly agree in writing, any
purported grant of a Lien (or any requirement to do so) contained in any L/C
Related Document shall be ineffective and null and void.
(g) The Issuing Bank will also deliver to the Agent, concurrently or
promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
(h) Within five Business Days after the end of each month, the Agent
will send to each Bank a statement reflecting the outstanding Letters of Credit
as of the end of such month.
3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Bank shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) the Pro Rata Share
of such Bank, times (ii) the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For purposes of
Section 2.01, each Issuance of a Letter of Credit shall be deemed to utilize the
Commitment of each
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Bank by an amount equal to the amount of such participation for so long as any
related L/C Obligations shall be outstanding.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Bank will promptly
notify the Company and the Agent. Provided that it shall have received such
notice, the Company shall reimburse the Issuing Bank prior to 12:00 noon
(Chicago time) on each date that any amount is paid by the Issuing Bank under
any Letter of Credit (each such date, an "Honor Date") in an amount equal to the
amount so paid by the Issuing Bank. In the event the Company fails to reimburse
the Issuing Bank for the full amount of any drawing under any Letter of Credit
by 12:00 noon (Chicago time) on the Honor Date, the Issuing Bank will promptly
notify the Agent and the Agent will promptly notify each Bank thereof, and the
Company shall be deemed to have requested that Base Rate Committed Loans be made
by the Banks to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Commitment and subject to
the conditions set forth in Section 5.02 other than any notice requirements.
Any notice given by the Issuing Bank or the Agent pursuant to this subsection
3.03(b) may be oral if immediately confirmed in writing (including by facsimile
transmission); provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(c) Each Bank shall upon any notice pursuant to subsection 3.03(b)
make available to the Agent for the account of the relevant Issuing Bank an
amount in immediately available funds equal to its Pro Rata Share of the amount
of the drawing, whereupon the participating Banks shall (subject to subsection
3.03(d)) each be deemed to have made a Committed Loan consisting of a Base Rate
Committed Loan to the Company in that amount. If any Bank so notified fails to
make available to the Agent for the account of the Issuing Bank the amount of
such Bank's Pro Rata Share of such amount by no later than 2:00 p.m. (Chicago
time) on the Honor Date, then interest shall accrue on such Bank's obligation to
make such payment, from the Honor Date to the date such Bank makes such payment,
at a rate per annum equal to the Federal Funds Rate in effect from time to time
during such period. The Agent will promptly give notice of the occurrence of
the Honor Date, but failure of the Agent to give any such notice on the Honor
Date or in sufficient time to enable any Bank to effect such payment on such
date shall not relieve such Bank from its obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing that is not converted
into Committed Loans consisting of Base Rate Committed Loans to the Company in
whole or in part as contemplated by subsection 3.03(b), because of the Company's
failure to satisfy the conditions set forth in Section 5.02 other than any
notice requirements or for any other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount of such drawing,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate plus 2% per
annum, and each Bank's payment to the Issuing Bank pursuant to subsection
3.03(c) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Bank in satisfaction of
its participation obligation under this Section 3.03.
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(e) Each Bank's obligation in accordance with this Agreement to make
the Committed Loans or L/C Advances, as contemplated by this Section 3.03, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the Issuing Bank, the
Company or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, however, that each Bank's obligation
to make Committed Loans (but not L/C Advances) under this Section 3.03 is
subject to the conditions set forth in Section 5.02.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of
the Issuing Bank of immediately available funds from the Company (i) in
reimbursement of any payment made by the Issuing Bank under the Letter of Credit
with respect to which any Bank has paid the Agent for the account of the Issuing
Bank for such Bank's participation in the Letter of Credit pursuant to Section
3.03 or (ii) in payment of interest thereon, the Agent will pay to each Bank, in
the same funds as those received by the Agent for the account of the Issuing
Bank, the amount of such Bank's Pro Rata Share of such funds, and the Issuing
Bank shall receive the amount of the Pro Rata Share of such funds of any Bank
that did not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to
return to the Company, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by the
Company to the Agent for the account of the Issuing Bank pursuant to subsection
3.04(a) in reimbursement of a payment made under the Letter of Credit or
interest or fee thereon, each Bank shall, on demand of the Agent, forthwith
return to the Agent or the Issuing Bank the amount of its Pro Rata Share of any
amounts so returned by the Agent or the Issuing Bank plus interest thereon from
the date such demand is made to the date such amounts are returned by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to the Federal Funds
Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Company agree that, in paying any drawing
under a Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or the authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks (including the Required Banks, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
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or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the Issuing Bank, shall be liable or responsible for any of the
matters described in clauses (a) through (g) of Section 3.06; provided, however,
anything in such clauses to the contrary notwithstanding, that the Company may
have a claim against the Issuing Bank, and the Issuing Bank may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Bank's willful misconduct or gross negligence
or the Issuing Bank's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Committed Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C- Related Document under all circumstances,
including the following:
(a) any lack of validity or enforceability of this Agreement or any
L/C-Related Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Company in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
(c) the existence of any claim, set-off, defense or other right that
the Company may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with this Agreement, the transactions contemplated
hereby or by the L/C-Related Documents or any unrelated transaction;
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(d) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(e) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by the
Issuing Bank under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(f) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.
3.07 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of each of
the Banks a letter of credit fee, in Dollars, with respect to the Letters of
Credit equal to the Applicable Margin for Offshore Rate Committed Loans, per
annum, times the average daily maximum Dollar Equivalent amount available to be
drawn on the outstanding Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon Letters of
Credit outstanding for that quarter as calculated by the Agent. Such letter of
credit fees shall be due and payable quarterly in arrears on the last Business
Day of each calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Closing Date,
through the Credit Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire), with the final payment to be made
on the Credit Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a letter of credit
fronting fee, in Dollars, for each Letter of Credit Issued by the Issuing Bank
equal to one-eighth of one percent (1/8%) of the Dollar Equivalent face amount
(or increased face amount, as the case may be) of such Letter of Credit. Such
Letter of Credit fronting fee shall be due and payable on each date of Issuance
of a Letter of Credit.
(c) The Company shall pay to the Issuing Bank from time to time on
demand the Issuing Bank's normal issuance, presentation, amendment negotiation,
and other processing fees,
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and other standard costs and charges, of the Issuing Bank relating to letters
of credit as from time to time in effect.
3.08 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Any and all payments by the Company to each Bank or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the
Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section
4.01), such Bank or the Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to each Bank or the Agent for
the account of such Bank, at the time interest is paid, Further Taxes in
the amount that the respective Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Bank and
the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further
Taxes in the amount that the respective Bank specifies as necessary to preserve
the after-tax yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted.
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Payment under this indemnification shall be made within 30 days after the date
the Bank or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes, the Company shall furnish to each Bank or
the Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank or the Agent.
(e) If the Company is required to pay any amount to any Bank or the
Agent pursuant to subsection (b) or (c) of this Section 4.01, then such Bank
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue, if such change in
the sole judgment of such Bank is not otherwise disadvantageous to such Bank.
4.02 Illegality.
(a) If any Bank determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable Lending Office to make Offshore Rate Loans
(including Offshore Rate Loans in any Applicable Currency), then, on notice
thereof by the Bank to the Company through the Agent, any obligation of that
Bank to make Offshore Rate Loans (including in respect of any LIBOR Bid Loan as
to which the Company has accepted such Bank's, but as to which the Borrowing
Date has not arrived) shall be suspended until the Bank notifies the Agent and
the Company that the circumstances giving rise to such determination no longer
exist, at which time such Bank shall notify the Agent and the Company and such
Bank's obligation to make Offshore Rate Loans shall be reinstated.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 4.04, either on the last day
of the Interest Period thereof, if the Bank may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if the Bank may not
lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Committed Loan, then concurrently with
such prepayment, the Company shall (without regard to whether the conditions
specified in Section 5.02 have been satisfied) borrow from the affected Bank, in
the amount of such repayment, a Base Rate Committed Loan.
(c) Before giving any notice to the Agent under this Section 4.02,
the affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
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4.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the introduction
of or any change (other than any change by way of imposition of or increase in
reserve requirements included in the calculation of the Offshore Rate) in the
interpretation of any law or regulation after the date of this Agreement or (ii)
the compliance by that Bank with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law) after
the date of this Agreement, there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any Offshore Rate Loans or
participating in Letters of Credit, or, in the case of the Issuing Bank, any
increase in the cost to the Issuing Bank of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the Company
shall be liable for, and shall from time to time, upon demand in compliance with
Section 4.07 (with a copy of such demand to be sent to the Agent), pay to the
Agent for the account of such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Bank (or its Lending Office) or any corporation controlling the Bank with
any Capital Adequacy Regulation, in any such case, after the date of this
Agreement affects or would affect the amount of capital required or expected to
be maintained by the Bank or any corporation controlling the Bank and (taking
into consideration such Bank's or such corporation's policies with respect to
capital adequacy and such Bank's desired return on capital) determines that the
amount of such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand in compliance
with Section 4.07 of such Bank to the Company through the Agent, the Company
shall pay to the Bank, from time to time as specified by the Bank, additional
amounts sufficient to compensate the Bank for such increase.
4.04 Funding Losses. The Company shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a competitive
Bid Request, a Notice of Borrowing or a Notice of Conversion/ Continuation
except as set forth in subsection 2.05(b) or (c) ;
(c) the failure of the Company to make any prepayment of any
Committed Loan in accordance with any notice delivered under Section 2.09;
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(d) the prepayment (including pursuant to Section 2.09 or 2.11) or
other payment (including after acceleration thereof) of an Offshore Rate
Loan or Absolute Rate Bid Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any Offshore
Rate Committed Loan to a Base Rate Committed Loan on a day that is not the
last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained or from charges
relating to any Offshore Currency Loans. For purposes of calculating amounts
payable by the Company to the Banks under this Section 4.04 and under subsection
4.03(a), each Offshore Rate Loan made by a Bank (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to have
been funded at the LIBOR used in determining the Offshore Rate for such Offshore
Rate Loan by a matching deposit or other borrowing in the interbank market for a
comparable amount and for a comparable period, whether or not such Offshore Rate
Loan is in fact so funded.
4.05 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to subsection 2.13(a) for
any requested Interest Period with respect to a proposed Offshore Rate Loan does
not adequately and fairly reflect the cost to the Banks of funding such Loan,
the Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent upon the instruction of the Required Banks revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Committed Loans instead of Offshore Rate
Loans. In the case of any Offshore Currency Loans, the Borrowing or
continuation shall be in an aggregate amount equal to the Dollar Equivalent
amount of the originally requested Borrowing or continuation in the Offshore
Currency, and to that end any outstanding Offshore Currency Loans which are the
subject of any continuation shall be redenominated and converted into Base Rate
Committed Loans in Dollars with effect from the last day of the Interest Period
with respect to any such Offshore Currency Loans.
4.06 Reserves on Offshore Rate Loans. The Company shall pay to each Bank,
in respect of any Offshore Currency Loans, additional costs arising under any
applicable regulations of the central bank or other relevant Governmental
Authority in the country in which the Offshore Currency of such Offshore Rate
Loan circulates on the unpaid principal amount of each Offshore Rate Loan equal
to the actual costs of such reserves allocated to such Loan by the Bank (as
determined by the Bank in good faith, which determination shall be conclusive),
payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least
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15 days' prior written notice (with a copy to the Agent) of such additional
interest from the Bank. If a Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
4.07 Certificates of Banks. Any Bank or any Bank's participant claiming
reimbursement or compensation under this Article IV shall deliver to the Company
(with a copy to the Agent) a certificate setting forth in reasonable detail the
amount payable to the Bank hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error. Notwithstanding
anything to the contrary contained in this Agreement, no amounts shall be
payable by the Company pursuant to Section 4.03, 4.04 or 4.06 with respect to
any period commencing more than 180 days before the delivery of the certificate
contemplated by this Section 4.07 unless such amounts are claimed as a result of
the retroactive effect of any newly enacted or adopted law, rule or regulation
and such certificate is delivered within 180 days after such enactment or
adoption.
4.08 Substitution of Banks. Upon the receipt by the Company from any Bank
(an "Affected Bank") of a claim for compensation under Section 4.03, the Company
may: (i) request the Affected Bank to use commercially reasonable efforts to
obtain a replacement bank or financial institution satisfactory to the Company
to acquire and assume all or a ratable part of all of such Affected Bank's
Loans, Commitment and participations in Letters of Credit (a "Replacement
Bank"); (ii) request one more of the other Banks to acquire and assume all or
part of such Affected Bank's Loans, Commitment and participations in Letters of
Credit; or (iii) designate a Replacement Bank. Any such designation of a
Replacement Bank under clause (i) or (iii) shall be subject to the prior written
consent of the Agent (which consent shall not be unreasonably withheld), and any
such substitution shall in any event be effective upon satisfaction of the
conditions set forth in Section 11.08.
4.09 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The obligation of each Bank
to make its initial Credit Extension hereunder, and to receive through the Agent
the initial Competitive Bid Request, is subject to the condition that the Agent
shall have received on or before the date of the initial Credit Extension all of
the following, in form and substance reasonably satisfactory to the Agent, and
in sufficient copies for each Bank, in each case on or before May 15, 1997:
(a) Credit Agreement and Notes. This Agreement and the Notes
executed by each party thereto;
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(b) Resolutions; Incumbency.
(i) copies of the resolutions of the board of directors of
the Company authorizing the transactions contemplated hereby,
certified by the Secretary or an Assistant Secretary of the Company;
and
(ii) a certificate of the Secretary or Assistant Secretary of
the Company certifying the names and true signatures of the officers
of the Company authorized to execute, deliver and perform, as
applicable, this Agreement and all other Loan Documents;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws of the Company as in effect on the date hereof, certified by
the Secretary or Assistant Secretary of the Company as of such date;
and
(ii) a good standing certificate for the Company from the
Secretary of State of the State of Wisconsin, its state of
incorporation and Kentucky, Missouri, Alabama, Georgia and Michigan,
together with bring-down certificates by facsimile from such
jurisdictions, dated the date hereof;
(d) Legal Opinions. An opinion of each of (i) Xxxxx, Xxxxx & Xxxxx,
counsel to the Company, substantially in the form of Exhibit D-1, and (ii)
Xxxxxx X. Xxxxxx, Esq., general counsel of the Company, substantially in
the form of Exhibit D-2, addressed to the Agent and the Banks;
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees to the extent then due and payable on the Closing
Date;
(f) Certificate. A certificate signed by a Responsible Officer on
behalf of the Company, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article
VI are true and correct on and as of such date, as though made on and
as of such date;
(ii) no Default or Event of Default exists or would result
after giving effect to the initial Credit Extension; and
(iii) there has occurred since June 30, 1996, no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and
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(g) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably request.
5.02 Conditions to All Credit Extensions. The obligation of each Bank to
make any Committed Loan to be made by it (including its initial Committed Loan),
the obligation of the Issuing Bank to issue, and of each Bank to participate in,
any Letter of Credit and the obligation of any Bank to make any Bid Loan as to
which the Company has accepted the relevant Competitive Bid (including its
initial Bid Loan), are subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice of Borrowing or Issuance. The Agent shall have received
(with, in the case of the initial Committed Loan only, a copy for each
Bank) a Notice of Borrowing or in the case of any Issuance of any Letter of
Credit, the Agent and the Issuing Bank shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI (other than Section 6.11(b))
shall be true and correct on and as of such Borrowing Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date or
Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist
or shall result after giving effect to such Borrowing or Issuance.
Each Notice of Borrowing, Notice of Competitive Bid Request and L/C Application
or L/C Amendment Application submitted by the Company hereunder shall constitute
a representation and warranty by the Company hereunder, as of the date of each
such notice and as of each Borrowing Date or Issuance Date, that the conditions
in subsection 5.02(a), (b) and (c) are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
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(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed and
in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and
(d) is in compliance in all material respect with all Requirements
of Law.
6.02 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company of this Agreement and each other Loan Document
have been duly authorized by all necessary corporate action, and do not and will
not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any material
Contractual Obligation to which the Company or any of its Subsidiaries is a
party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or any of its Subsidiaries or its property
is subject; or
(c) violate any Requirement of Law applicable to the Company or any
of its Subsidiaries.
6.03 Governmental Authorization. No material approval, consent,
exemption, authorization, or other action by, or material notice to, or material
filing with, any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, the
Company of the Agreement or any other Loan Document.
6.04 Binding Effect. This Agreement and each other Loan Document
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.05 Litigation. To the best of the Company's knowledge, no litigation
(including, without limitation, derivative actions), arbitration proceedings or
governmental or regulatory proceedings are pending or threatened against the
Company or any of its Subsidiaries that would, if adversely determined, be
reasonably likely to have a Material Adverse Effect, except as set forth in
Schedule 6.05. Other than any liability incident to such litigation or
proceedings, the Company does not have any material contingent liabilities not
provided for or disclosed in the financial statements referred to in Section
6.11(a).
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6.06 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Company. As of the Closing Date,
neither the Company nor any Subsidiary is in default under or with respect to
any Contractual Obligation in any respect which, individually or together with
all such defaults, could reasonably be expected to have a Material Adverse
Effect, or that would, if such default had occurred after the Closing Date,
create an Event of Default under subsection 9.01(e).
6.07 ERISA Compliance. Except as specifically disclosed in Schedule 6.07:
(a) Each Plan is in compliance with the applicable provisions of
ERISA, the Code and other federal or state law except where the failure to do so
or to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Plan which is intended to qualify under Section 401(a) of the Code
has received a favorable determination letter from the IRS and, to the best
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (1) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 7.12.
Neither the Company nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.09 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
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6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition.
(a) The audited consolidated financial statements of the Company
and its Subsidiaries for the fiscal year ended June 30, 1996 and the unaudited
consolidated financial statements of the Company and its Subsidiaries for the
six month period ended December 29, 1996, and in each case the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the period ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein (subject to ordinary, good faith year end
audit adjustments);
(ii) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11,
show all material indebtedness and other liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of
the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations.
(b) Since June 30, 1996, there has been no Material Adverse
Effect.
6.12 Environmental Matters. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in Schedule 6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act of 1940. The Company is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
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6.14 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 6.14, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
6.15 Subsidiaries. As of the date of this Agreement, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.15. The Company has no Material Subsidiaries other than those specifically
disclosed in part (b) of Schedule 6.15 or as disclosed pursuant to subsection
7.02(d) (including their jurisdictions of incorporation). As of the date of
this Agreement, the Company has no equity investments in any other corporation
or entity other than those specifically disclosed in part (c) of Schedule 6.15.
6.16 Insurance. The properties of the Company and its Subsidiaries are
insured as required by Section 7.06.
6.17 Full Disclosure. None of the representations or warranties made by
the Company in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of the
Company or any Subsidiary in connection with the Loan Documents (including the
offering and disclosure materials delivered by or on behalf of the Company to
the Banks prior to the Closing Date), contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid, unless the Required Banks waive compliance
in writing:
7.01 Financial Statements. The Company shall deliver to the Agent and
each Bank:
(a) as soon as available, but not later than 100 days after the end
of each fiscal year (commencing with fiscal year ending June 29, 1997), a
copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related
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consolidated statements of income or operations, shareholders' equity and
cash flows for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, and accompanied by the opinion of
Xxxxxx Xxxxxxxx LLP or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state that such
consolidated financial statements present fairly the financial position for
the periods indicated in conformity with GAAP applied on a consistent
basis. Such opinion shall not be qualified or limited, in either case,
because of a restricted or limited examination by the Independent Auditor
of any material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 50 days after the end
of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ending March 30, 1997), a copy of the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the
end of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first
day and ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with GAAP (subject
to ordinary, good faith year-end audit adjustments and the absence of notes
thereto), the financial position and the results of operations of the
Company and the Subsidiaries.
7.02 Certificates; Other Information. The Company shall furnish to the
Agent and each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default with respect to Sections 8.01,
8.02, 8.03, 8.04, 8.05, 8.07, 8.10, and 8.11, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01(a) and (b), a Compliance Certificate
executed by a Responsible Officer;
(c) promptly, but not later than five days after the date of filing
with the SEC, copies of all financial statements and reports that the
Company sends to its shareholders, and copies of all financial statements
and regular, periodical or special reports (including Forms 10-K, 10-Q (in
each case excluding exhibits and schedules thereto unless requested by the
Agent or a Bank) and 8-K) that the Company or any Subsidiary may make to,
or file with, the SEC;
(d) promptly after the creation or acquisition of any Material
Subsidiary, the name of such Material Subsidiary, a description of its
business, its net worth and the value of its assets; and
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(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Agent, at the request of any Bank, may from time to time request.
7.03 Notices. The Company shall promptly notify the Agent:
(a) upon any Responsible Officer becoming aware of the occurrence
of any Default or Event of Default;
(b) of any matter that has resulted, or may, in the judgment of the
Company, reasonably be expected to result in a Material Adverse Effect,
including (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Company or
any Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding affecting
the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) upon any Responsible Officer becoming aware of the occurrence
of any ERISA Event (but in no event more than 10 days after such ERISA
Event), and deliver to the Agent and each Bank a copy of any notice with
respect to such ERISA Event that is filed with a Governmental Authority and
any notice delivered by a Governmental Authority to the Company or any
ERISA Affiliate with respect to such ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
and
(e) promptly after the president, chief financial officer, chief
executive officer, treasurer or general counsel of the Company obtains
knowledge thereof, notice of any change in the Applicable Credit Rating
assigned by S&P or Xxxxx'x.
Each notice under this Section 7.03 shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 7.03(a) shall describe the provisions of this Agreement or
other Loan Document that have been breached or violated.
7.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Material Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation except as otherwise permitted by this Agreement;
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(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business except in
connection with transactions permitted by Section 8.03 and sales of assets
permitted by Section 8.02 and except for any of the foregoing the
expiration or termination of which could not reasonably be expected to have
a Material Adverse Effect;
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its material property which is
used in its business in good working order and condition, ordinary wear and tear
excepted, except where the failure to so maintain or preserve could not
reasonably be expected to have a Material Adverse Effect.
7.06 Insurance. The Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons; provided that the
Company and its Subsidiaries may self-insure against such risks and in such
amounts as is usually self-insured by companies engaged in similar businesses
and owning similar properties in the same general areas in which the Company and
its Subsidiaries operate.
7.07 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such
Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property; and
(c) all Indebtedness, as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
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7.08 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to comply, with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business, except where the failure
to so comply could not reasonably be expected to cause a Material Adverse
Effect.
7.09 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP, or
applicable accounting procedures related to foreign Material Subsidiaries,
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent and representatives of any Bank to
visit and inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and, in the presence of the
Company if the Company shall so request, independent public accountants, all at
the expense of the Company and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Company; provided, however, when an Event of Default exists the Agent or
any Bank may do any of the foregoing at the expense of the Company at any time
during normal business hours and without advance notice.
7.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except where the failure to do so or to
so comply could not reasonably be expected to have a Material Adverse Effect.
7.12 Use of Proceeds. The Company shall use the proceeds of the Loans for
general corporate purposes including the repurchase of the Company's common
stock and for commercial paper back-up, but in any event not (a) in
contravention of any Requirement of Law or (b) (i) to purchase or carry Margin
Stock, (ii) to repay or otherwise refinance indebtedness of the Company or
others incurred to purchase or carry Margin Stock, (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any other transaction that is subject to Section 13 or 14 of the
Exchange Act.
7.13 Guarantors. In the event any Person shall hereafter become a U.S.
domestic Material Subsidiary, the Company shall promptly cause such Material
Subsidiary to execute and deliver to the Agent (on behalf of the Banks) a
guaranty of the Obligations of the Company substantially in form of Exhibit K
and otherwise in form and substance satisfactory to the Agent.
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ARTICLE VIII
NEGATIVE AND FINANCIAL COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid, unless the Required Banks waive compliance
in writing:
8.01 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any Subsidiary
on the Closing Date and set forth in Schedule 8.01 securing Indebtedness
outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by Section 7.07; provided
that no notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent for more than 90 days or remain
payable without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or any Subsidiary securing
(i) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a
like nature; in each case, incurred in the ordinary course of business and
treating as non-delinquent any delinquency which is being contested in good
faith and by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(g) Liens consisting of judgment or judicial attachment liens with
respect to judgments that do not constitute an Event of Default and in the
aggregate do not exceed $10,000,000;
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(h) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the businesses of
the Company and its Subsidiaries;
(i) Liens on assets of corporations which become Subsidiaries after
the date of this Agreement; provided, however, that such Liens existed at
the time the respective corporations became Subsidiaries and were not
created in anticipation thereof;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not intended by
the Company or any Subsidiary to provide collateral to the depository
institution;
(k) Liens securing reimbursement obligations incurred in the
ordinary course of business for letters of credit, which Liens encumber
only goods, or documents of title covering goods, which are purchased in
transactions for which such letters of credit are issued;
(l) any extension, renewal or substitution of or for any of the
foregoing Liens; provided that (i) the Indebtedness or other obligation or
liability secured by the applicable Lien shall not exceed the Indebtedness
or other obligation or liability existing immediately prior to such
extension, renewal or substitution and (ii) the Lien securing such
Indebtedness or other obligation or liability shall be limited to the
property which, immediately prior to such extension, renewal or
substitution, secured such Indebtedness or other obligation or liability;
(m) other Liens (other than pursuant to subsection 8.01(n)) securing
Indebtedness or other obligations not at any time exceeding an amount equal
to $20,000,000; and
(n) Liens on assets of an Emerging Market Subsidiary securing
Indebtedness incurred by such Emerging Market Subsidiary.
8.02 Disposition of Assets. The Company shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (collectively, a "Disposition")
(whether in one or a series of transactions) any property (including accounts
and notes receivable, with or without recourse) or enter into any agreement to
do any of the foregoing, except:
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(a) Dispositions of inventory, or used, worn-out, obsolete or
surplus equipment and other assets, all in the ordinary course of business;
(b) Dispositions of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment;
(c) Dispositions of assets received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(d) Dispositions of assets between and among the Company and its
Wholly-Owned Subsidiaries and the Disposition of assets from any other
Subsidiary to the Company or a Wholly-Owned Subsidiary of the Company;
provided that (i) at the time of any such Disposition, no Default or Event
of Default shall exist or shall result after giving effect to such
Disposition and (ii) the aggregate Dollar value of the assets subject to a
Disposition from the Company to a Wholly-Owned Subsidiary shall not exceed
(when aggregated with all Dispositions effected pursuant to subsection
8.02(e)) in any fiscal year 10% of the total consolidated assets of the
Company and its Subsidiaries, determined in accordance with GAAP, as of the
beginning of such fiscal year; and
(e) Dispositions not otherwise permitted hereunder which are made
for fair market value; provided that (i) at the time of any such
Disposition, no Default or Event of Default shall exist or shall result
after giving effect to such Disposition and (ii) the aggregate sales price
of all assets so sold by the Company and its Subsidiaries, together, shall
not exceed (when aggregated with all Dispositions effected pursuant to
subsection 8.02(d)) in any fiscal year 10% of the total consolidated assets
of the Company and its Subsidiaries, determined in accordance with GAAP, as
of the beginning of such fiscal year.
8.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Subsidiary to, merge with or consolidate into any Person,
except:
(a) the Company or any Subsidiary may merge with or consolidate
into any Person, provided that (i) at the time of such merger or
consolidation, no Default or Event of Default shall exist or result after
giving effect to the consummation of such merger or consolidation and (ii)
the Company or such Subsidiary shall be the continuing or surviving
corporation;
(b) any Subsidiary may merge with or consolidate into the Company,
provided that the Company shall be the continuing or surviving corporation,
or with any one or more Subsidiaries, provided that if any transaction
shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation;
and
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(c) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary or as otherwise permitted by Section 8.02.
Any Disposition of assets which would be permitted by Section 8.02 may also be
accomplished via a merger or consolidation of a Subsidiary and such merger or
consolidation shall be permitted pursuant to this Section 8.03.
8.04 Loans and Investments. The Company shall not purchase or acquire, or
suffer or permit any Subsidiary to purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person (other than the Company), or make
or commit to make any Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person (other than the Company) including any Affiliate of the Company
(together, "Investments"), except for:
(a) Investments held by the Company or its Subsidiary in the form
of cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) extensions of credit by the Company to any of its Wholly-Owned
Subsidiaries or by any of its Subsidiaries to the Company or one of its
Wholly-Owned Subsidiaries, provided, however, that the aggregate amount of
such credit extended by the Company to Wholly-Owned Subsidiaries that are
Emerging Market Subsidiaries shall not exceed (determined without regard to
any write-downs or write-offs thereof and when aggregated with all
Investments effected pursuant to subsection 8.04(j), all Indebtedness
incurred pursuant to subsection 8.05(g) and all Contingent Obligations
incurred pursuant to subsection 8.07(e)(y)) (x) at any time prior to April
18, 1998, $60,000,000 and (y) at any time thereafter, $100,000,000;
(d) advances to employees for moving, relocation and travel
expenses, drawing accounts and similar expenditures and loans to employees
in the ordinary course of business;
(e) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, suppliers and customers arising in
the ordinary course of business;
(f) Investments of the Company and its Subsidiaries in existence as
of the Closing Date and set forth on Schedule 8.04;
(g) any extension or renewal of any of the foregoing;
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(h) Investments incurred in order to consummate an Acquisition of
any Person principally engaged in a business substantially similar to the
business of the Company taken as a whole and reasonable extensions thereof;
provided that (i) such Acquisition is undertaken in accordance with all
applicable Requirements of Law, (ii) the prior, effective written consent
or approval to such Acquisition by the board of directors or equivalent
governing body of the Person being acquired is obtained; and (iii) no
Default or Event of Default shall have occurred or be continuing both
before and after giving effect to such Acquisition;
(i) other Investments (other than pursuant to subsection 8.04(j))
made in any fiscal year not exceeding in the aggregate in such fiscal year
an amount equal to 5% of the total consolidated assets of the Company and
its Subsidiaries, determined in accordance with GAAP, as of the beginning
of such fiscal year; and
(j) Investments (other than pursuant to subsection 8.04(c)) made by
the Company or a Wholly-Owned Subsidiary in an Emerging Market Entity not
to exceed (when aggregated with all extensions of credit to Wholly-Owned
Subsidiaries that are Emerging Market Subsidiaries pursuant to subsection
8.04(c), all Indebtedness incurred pursuant to subsection 8.05(g) and all
Contingent Obligations incurred pursuant to subsection 8.07(e)(y)) (x) at
any time on or prior to April 18, 1998, $60,000,000 and (y) at any time
thereafter, $100,000,000.
8.05 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.07;
(c) Indebtedness existing on the Closing Date and set forth in
Schedule 8.05;
(d) Indebtedness constituting an Investment permitted pursuant to
Section 8.04;
(e) Indebtedness secured by Liens permitted under subsection
8.01(m);
(f) other Indebtedness (other than pursuant to subsection 8.05(g))
of the Company and its Subsidiaries so long as (x) no Default or Event of
Default shall have occurred or be continuing both before and after giving
effect to the incurrence of any such Indebtedness and (y) not more than
$20,000,000 of such other Indebtedness outstanding at any time shall be
Indebtedness of the Subsidiaries of the Company; and
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(g) Indebtedness of Emerging Market Subsidiaries to a Person other
than the Company so long as (x) no Default or Event of Default shall have
occurred or be continuing both before and after giving effect to the
incurrence of any such Indebtedness and (y) the aggregate amount of all
such Indebtedness shall not exceed (when aggregated with all extensions of
credit to Wholly-Owned Subsidiaries that are Emerging Market Subsidiaries
pursuant to subsection 8.04(c), all Investments effected pursuant to
subsection 8.04(j) and all Contingent Obligations incurred pursuant to
subsection 8.07(e)(y)) (x) at any time on or prior to April 18, 1998,
$60,000,000 and (y) at any time thereafter, $100,000,000.
8.06 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary.
8.07 Contingent Obligations. The Company shall not, and shall not suffer
or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course
of business;
(b) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in Schedule 8.07;
(c) Contingent Obligations with respect to Surety Instruments
incurred in the ordinary course of business;
(d) in addition to other Contingent Obligations permitted
hereunder, Contingent Obligations which do not exceed $20,000,000 in the
aggregate at any one time outstanding; and
(e) Guaranty Obligations of the Company with respect to (x) any
Indebtedness of its Subsidiaries permitted pursuant to subsections 8.05(f)
and (g), and (y) (i) any financial obligations of any Wholly-Owned
Subsidiary with respect to its Investment in an Emerging Market Entity and
(ii) any Indebtedness of an Emerging Market Entity, provided, however, that
the aggregate amount of Contingent Obligations pursuant to this clause (y)
shall not exceed (when aggregated with all extensions of credit to
Wholly-Owned Subsidiaries that are Emerging Market Subsidiaries pursuant to
subsection 8.04(c), all Investments effected pursuant to subsection 8.04(j)
and all Indebtedness incurred pursuant to subsection 8.05(g)) (I) at any
time on or prior to April 18, 1998, $60,000,000 and (II) at any time
thereafter, $100,000,000.
8.08 ERISA. The Company shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the
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Company in an aggregate amount in excess of $10,000,000; or (b) engage in a
transaction that could be reasonably expected to be subject to Section 4069 or
4212(c) of ERISA.
8.09 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof taken as a whole, or reasonable extensions
thereof.
8.10 Accounting Changes. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as permitted by GAAP or SEC reporting requirements,
or change the fiscal year of the Company or of any Subsidiary.
8.11 Financial Covenants.
(a) Interest Coverage Ratio. For the period of four consecutive
fiscal quarters ending on the last day of each fiscal quarter, the Company
shall not permit the Interest Coverage Ratio to be less than 2.5:1.0.
(b) Leverage Ratio. The Company shall not at any time permit the
ratio of (i) Total Debt to (ii) Total Capitalization to be greater than (x)
at any time on or prior to the second anniversary of the date of this
Agreement, 65%, and (y) thereafter, 60% at any time.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within
five days after the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by
the Company or any Subsidiary made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Company, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any
term, covenant or agreement (i) contained in Section 8.01, 8.04 or 8.07 and such
failure continues unremedied for five Business Days or (ii) contained in
subsection 7.03(a), Section 7.12 or in any other provision of Article VIII not
referred to above in clause (i); or
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(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 20 days after the
date upon which written notice thereof is given to the Company by the Agent or
any Bank; or
(e) Cross-Default. The Company or any Subsidiary (i) fails to make
any payment in respect of any Indebtedness or Contingent Obligation having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than (x) at any time prior to the date upon which the
Indebtedness referred to in item 1 of Schedule 8.05 is indefeasibly paid in
full, $10,000,000 and (y) thereafter, $20,000,000, when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or (ii) fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation referred to in the preceding clause (i),
and such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or Contingent Obligation or beneficiary or beneficiaries of
such Indebtedness or Contingent Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or such Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any Material
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any Material
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company or any Material Subsidiary admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any Material Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar Person
for itself or a substantial portion of its property or business; or
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(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted in liability of the
Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $10,000,000; (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans at any time exceeds
$30,000,000; or (iii) the Company or any ERISA Affiliate shall fail to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of $10,000,000; or
(i) Monetary Judgments. One or more final judgments, final orders,
decrees or arbitration awards is entered against the Company or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) as to
any single or related series of transactions, incidents or conditions, of
$10,000,000 or more (determined after allowance for the application of any
insurance proceeds to such judgment or order), and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 10 days after
the entry thereof; or
(j) Change of Control. There occurs any Change of Control; or
(k) Guarantor Defaults. Any guarantor of the Obligations fails in
any material respect to perform or observe any term, covenant or agreement in
any guaranty of the obligations; or any guaranty of the Obligations is for any
reason partially (including with respect to future advances) or wholly revoked
or invalidated, or otherwise ceases to be in full force and effect, or any
guarantor of the Obligations or any other Person contests in any manner the
validity or enforceability thereof or denies that it has any further liability
or obligation thereunder; or any event described at subsection (f) or (g) of
this Section occurs with respect to any guarantor of the Obligations.
9.02 Remedies. If any Event of Default occurs and is continuing, the
Agent shall, at the request of, or may, with the consent of, the Required Banks,
(a) declare the commitment of each Bank to make Committed Loans and
to issue and participate in Letters of Credit and the obligation of the
Issuing Bank to issue Letters of Credit to be terminated, whereupon such
commitments and obligations shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or
applicable law including, without limitation, the right to stop accepting
competitive Bid Requests;
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provided, however, that upon the occurrence and during the continuance of any
Event of Default specified in subsection (f) or (g) of Section 9.01 with
respect to the Company, the obligation of each Bank to make Loans and the
obligation of any Issuing Bank to issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of the Agent or any Bank. In addition, following
the occurrence and during the continuance of an Event of Default, so long as
any Letter of Credit has not been fully drawn and has not been canceled or
expired by its terms, upon demand by the Agent or the request of the Required
Banks (or automatically upon the occurrence of any Event of Default specified
in subsection (f) or (g) of Section 9.01), the Company shall Cash Collateralize
the dollar amount of the aggregate undrawn amount of all Letters of Credit and
any fees in connection with drawings thereon. Such funds shall be promptly
applied by the Agent to reimburse the Issuing Bank for drafts drawn from time
to time under the Letters of Credit. Such funds, if any, remaining following
the payment of all Obligations in full in cash and the termination or
cancellation of all Letters of Credit or the earlier termination of all Events
of Default shall, unless the Agent is otherwise directed by a court of
competent jurisdiction, be promptly paid over to the Company.
9.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent". Each Bank hereby
irrevocably (subject to Section 10.09) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
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10.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Required Banks and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
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10.05 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Banks, unless the Agent shall have
received written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Required Banks in accordance with Article
IX; provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
10.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; provided, however, that no
Bank shall be liable for the payment to the Agent-Related Persons of any portion
of such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Bank shall reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document,
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or any document contemplated by or referred to herein, to the extent that the
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section 10.07 shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
10.08 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks" include BofA in
its individual capacity.
10.09 Successor Agent. The Agent may, and at the request of the Required
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Required Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall be approved by
the Company (such approval not to be unreasonably withheld). If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article X and Sections 11.04 and 11.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent
by the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Banks appoint a successor agent as provided for
above.
10.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent and the Company, to deliver to the
Agent and the Company:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
and executed copies of IRS Form 1001 before the
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payment of any interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with the conduct of a United States trade or business
by such Bank, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of such
Bank and in each succeeding taxable year of such Bank during which interest
may be paid under this Agreement; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption from,
or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent and the Company of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent and the Company of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Bank. To the
extent of such percentage amount, the Agent and the Company will treat such
Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent or the Company may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section 10.10 are not delivered to the Agent
or the Company, then the Agent or the Company may withhold from any interest
payment to such Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax imposed by Sections 1441 and 1442
of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent or the Company did
not properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Agent or the Company of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax
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ineffective, or for any other reason) such Bank shall indemnify the Agent and
the Company fully for all amounts paid, directly or indirectly, by the Agent or
the Company as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Agent or the Company under this Section 10.10, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company shall be effective unless the same shall be in writing
and signed by the Required Banks (or by the Agent at the written request of the
Required Banks) and the Company and acknowledged by the Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks and
the Company and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate
any Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest (other than
default interest), fees or other amounts due to the Banks (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any fees or other
amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any
of them to take any action hereunder; or
(e) amend this Section 11.01, or Section 2.16, or any provision
herein providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Agent in addition to the Required Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (ii) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
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11.02 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 11.02, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 11.02; or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or X to the Agent shall not be effective until
actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or not
taken by the Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans shall not be affected
in any way or to any extent by any failure by the Agent and the Banks to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Agent and the Banks of a confirmation which is at variance with the terms
understood by the Agent and the Banks to be contained in the telephonic or
facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
11.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Agent promptly after demand for all reasonable
out-of-pocket costs and expenses incurred by the Agent in connection with the
development, preparation, delivery, administration and execution of this
Agreement and the other Loan Documents, and the syndication, sale and/or
assignment by BofA and the Arranger of the Loans, Commitments and interests of
BofA (and its affiliates) hereunder (which the Company acknowledges and agrees
will continue after the Closing
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Date) together with any amendment, supplement, waiver or modification to (in
each case, whether or not consummated) this Agreement, any Loan Document and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, reasonable Attorney Costs incurred by the Agent with
respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank
promptly after demand for all reasonable out-of-pocket costs and expenses
(including reasonable Attorney Costs) incurred by them in connection with the
exercise, enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
any Default or Event of Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding).
11.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement
or any Loan Document, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the proceeds thereof,
or related to any Offshore Currency transactions entered into in connection
herewith, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities to the extent resulting from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section 11.05 shall survive payment of all other Obligations.
11.06 Payments Set Aside. To the extent that the Company makes a payment
to the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
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11.07 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
11.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company (which
consent shall not be unreasonably withheld) at all times other than during the
existence of an Event of Default, the Agent and the Issuing Bank, if
applicable, at any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company, the Agent or the Issuing Bank,
if applicable, shall be required in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is an Affiliate of such Bank)
(each an "Assignee") all, or any ratable part of all, of the Loans, the
Commitments and the other rights and obligations of such Bank hereunder, in a
minimum amount of $10,000,000; provided, however, that the Company and the Agent
may continue to deal solely and directly with such Bank in connection with the
interest so assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Company and the Agent by
such Bank and the Assignee; (ii) such Bank and its Assignee shall have delivered
to the Company and the Agent an Assignment and Acceptance in the form of Exhibit
E ("Assignment and Acceptance") together with any Note or Notes subject to such
assignment and (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee, (and provided that it consents to such assignment in
accordance with subsection 11.08(a)), the Company shall execute and deliver to
the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment
and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the Loans retained by
the assignor Bank (such Notes to be in exchange for, but not in payment of, the
Notes held by such Bank). Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto. The Agent shall not
deliver any new Notes executed by the Company unless the Agent shall
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have received the old Notes to be replaced or customary indemnification
in favor of the Agent and the Company with respect to lost or destroyed notes.
Such old Notes shall be promptly returned to the Company.
(d) Any Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Commitment of that Bank and the other interests of
that Bank (the "originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's obligations under this
Agreement shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Company and the
Agent shall continue to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Banks as described in the first proviso
to Section 11.01. In the case of any such participation, the Participant shall
be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were
also a Bank hereunder. Notwithstanding the immediately preceding sentence, all
amounts payable by the Company under this Agreement and each other Loan Document
shall be determined as if no such participation had been sold.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law. Notwithstanding any such pledge, such Bank shall remain liable
to the Company and the Issuing Bank as if such pledge had not been made.
(f) Notwithstanding anything in this Section 11.09 neither BofA
nor the Arranger will begin contacting prospective Banks about a potential
assignment of their rights hereunder until the earlier of (i) April 20, 1997 or
(ii) the Company's public disclosure of its contemplated recapitalization.
11.09 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Agent on the Company's or such Subsidiary's behalf, under this Agreement
or any other Loan Document, and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Company or any Subsidiary; except
to the extent such information (a) was or becomes generally available to the
public other than as a result of disclosure by the Bank, or (b) was or becomes
available on a non-confidential basis from a source other than the Company,
provided that such source is not bound
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by a confidentiality agreement with the Company known to the Bank; provided,
however, that any Bank may disclose such information (i) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such
authority; (ii) pursuant to subpoena or other court process; (iii) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party; (v) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document;
(vi) to such Bank's independent auditors and other professional advisors; (vii)
to any Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Banks hereunder; (viii) as to any Bank or its Affiliate, as
expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Bank or such Affiliate; and (ix) to its Affiliates,
provided that such Affiliate uses such information only in connection with this
Agreement and agrees in writing to keep such information confidential.
11.10 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company 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 by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
11.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
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11.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
11.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS;
PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND
THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
11.16 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION 11.16 AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS,
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SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 Judgment. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Company in respect of any such
sum due from it to the Agent hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Agent of any sum
adjudged to be so due in the Judgment Currency, the Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Agent in the Agreement Currency, the Company agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the
Agent or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement currency so purchased is greater than the sum originally
due to the Agent in such currency, the Agent agrees to return the amount of any
excess to the Company (or to any other Person who may be entitled thereto under
applicable law).
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents and embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
XXXXXX & XXXXXXXX CORPORATION
By:___________________________
Name:_________________________
Title:________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:___________________________
Name:_________________________
Title:________________________
BANK OF AMERICA ILLINOIS, as Issuing Bank
By:___________________________
Name:_________________________
Title:________________________
BANK OF AMERICA ILLINOIS, as a Bank
By:___________________________
Name:_________________________
Title:________________________
