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EXHIBIT 4(b)
AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT
This Amended and Restated 364-Day Revolving Credit Agreement is made
and entered into this 31st day of December, 1999 by and among The
Xxxxxxx-Xxxxxxxx Company ("Company") whose principal place of business is
located at 000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx, Xxxx 00000, Chase Bank of
Texas, National Association, formerly known as Texas Commerce Bank National
Association ("CBT"), as Administrative Agent, The Chase Manhattan Bank
("Chase"), as the Competitive Advance Facility Agent, and the financial
institutions listed on Schedule A hereto together with each of their successors
and assigns (collectively referred to as the "Lenders" and individually a
"Lender").
W I T N E S S E T H:
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WHEREAS, the Company, CBT, Chase and certain of the Lenders previously
entered into that certain 364-Day Revolving Credit Agreement, dated January 3,
1997, which agreement was subsequently amended effective March 31, 1997 and
January 1, 1999, pursuant to which the Lenders agreed to make available to the
Company a certain principal amount of money to be used by the Company for
general corporate purposes including, but not limited to, commercial paper
backup, general working capital, acquisitions of assets, stock or other
ownership interests and repurchases or redemptions of securities; and
WHEREAS, the Company, CBT, Chase and the Lenders desire to amend and
restate such 364-Day Revolving Credit Agreement, as amended, on the terms and
subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADMINISTRATIVE AGENT" shall mean Chase Bank of Texas, National Association, or
any successor Lender appointed by the Company and approved by the
holders of fifty-one percent (51%) by amount of the Commitments.
"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of interest in
effect for any given day as publicly announced from time to time by the
Administrative Agent as its "prime rate" and (ii) the Federal Funds
Rate plus 50 basis points. Any change by the Administrative Agent of
its "prime rate" shall take effect at the opening of business on the
day specified in the public announcement of such change.
"ALTERNATE BASE RATE LOAN" shall mean a Loans bearing interest at the Alternate
Base Rate.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which New
York banks are open for the transaction of business.
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"COMMITMENT" shall mean the obligation of each Lender to make Loans, under
Section 2.1A up to the amount set opposite the name of such Lender as
set forth on such Lender's signature page hereto (or such lesser amount
as shall be determined pursuant to Section 2.5 hereof).
"COMMITMENT PERIOD" shall mean the period which commences on the Effective Date
and terminates on the Termination Date.
"COMPETITIVE ADVANCE FACILITY AGENT" shall mean The Chase Manhattan Bank.
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive Loan in
accordance with Section 2.1C.
"COMPETITIVE BID RATE" shall mean, with respect to any Competitive Bid, the
Competitive Libor Rate or the Fixed Rate, as applicable, offered by the
Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request by the Company for Competitive
Bids in accordance with Section 2.1C.
"COMPETITIVE BORROWING" shall mean a borrowing by the Company in response to a
Competitive Bid Request.
"COMPETITIVE LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six
or, if available to all of the Lenders, twelve months (as selected by
the Company) commencing on the applicable borrowing date of each
Competitive Libor Loan hereunder; provided, however, that no
Competitive Libor Interest Period shall end after the Termination Date.
"COMPETITIVE LIBOR LOAN" shall mean a Competitive Loan bearing interest at a
rate based on LIBOR.
"COMPETITIVE LIBOR RATE" shall mean, with respect to a Competitive LIBOR Loan,
LIBOR plus the applicable margin specified by the Lender making such
Competitive Loan in its Competitive Bid.
"COMPETITIVE LOAN" shall mean a Loan made pursuant to Section 2.1C.
"COMPETITIVE NOTE" shall mean a Note or Notes executed and delivered pursuant to
Section 2.1C.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of the Company and its Consolidated Subsidiaries over all of
their liabilities (other than Subordinated Indebtedness), as determined
on a consolidated basis in accordance with generally accepted
accounting principles as applied by the Company in the calculation of
such amount in the Company's then most recent financial statements
furnished to its stockholders, plus the aggregate value of all treasury
stock purchased after January 3, 1997 (at cost) by the Company (to the
extent that the aggregate value of such treasury stock for purposes of
this calculation does not exceed Two Hundred Fifty Million Dollars
($250,000,000)). The calculation of Consolidated Net Worth shall
exclude any amounts which would otherwise be required to be included
therein as a result of the future adoption by the Financial Accounting
Standards Board of any policy, statement, rule or regulation requiring
the Company to record an accumulative liability on its Financial
Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every Subsidiary
which is consolidated in the Company's financial statements contained
in its then most recent Financial Report.
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"DEBT" shall mean, collectively, all indebtedness at any one time outstanding
hereunder and owed by the Company to the Lenders pursuant to this
Agreement and includes the principal of and interest on all Notes and
each conversion, extension, renewal or refinancing thereof in whole or
in part, the Facility Fees and any prepayment premium due under Section
2.1A(x).
"DOLLARS" or "$" shall mean any lawful currency of the United States of America.
"EFFECTIVE DATE" shall mean December 31, 1999.
"EUROCURRENCY" shall mean any freely transferrable and convertible currency on
deposit outside the country of issuance.
"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"FACILITY FEE" shall mean the sum to be paid by the Company to the
Administrative Agent on behalf of each Lender on the last Banking Day
of each calendar quarter prior to the termination of the Commitments
and the repayment of the outstanding Loans, calculated, for each day,
as the product of each Lender's Commitment (or, after the termination
of such Commitments, each Lender's outstanding Loans), on such day, and
during the Commitment Period, and upon the termination of the
Commitments, calculated, for each day, as the product of each Lender's
Commitment, on such day and five (5) basis points.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Banking
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Banking Day, the rate for such day shall be the arithmetic mean, as
determined by the Administrative Agent, of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York time) on such day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as
otherwise indicated therein, filed by the Company with the Securities
and Exchange Commission (or any governmental body or agency succeeding
to the functions of such Commission) on Form 10-K or 10-Q pursuant to
the Securities Exchange Act of 1934 ("Exchange Act"), as then in effect
(or any comparable forms under similar Federal statutes then in force),
and the most recent financial statements furnished by the Company to
its stockholders (which annual financial statements shall be certified
by the Company's independent certified public accountants).
"FIXED RATE LOANS" shall mean a Competitive Loan bearing interest at a Fixed
Rate.
"FIXED RATE" shall mean, with respect to any Competitive Loan (other than a
Competitive Libor Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive
Bid.
"INTEREST ADJUSTMENT DATE" shall mean the last day of each LIBOR Interest
Period.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16 of 1%) of
the per annum rates at which deposits in immediately available funds in
Dollars for the number of months in the relevant LIBOR Interest Period
and in the amount of the LIBOR Loan or Competitive Libor
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Loan to be disbursed or to remain outstanding during such LIBOR
Interest Period, as the case may be, are offered to the Administrative
Agent or the Competitive Advance Facility Agent, as the case may be, by
the Reference Lenders in the London Interbank Eurodollar market,
determined as of 11:00 a.m. London time, two (2) London Banking Days
prior to the beginning of the relevant LIBOR Interest Period pertaining
to a LIBOR Loan or Competitive Libor Loan hereunder, as appropriately
adjusted by dividing such average rate by 1.00 minus the applicable
Reserve Percentage then in effect.
"LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six or, if
available to the Lenders, twelve months (as selected by the Company)
commencing on the applicable borrowing date of each LIBOR Loan or
Competitive Libor Loan hereunder; provided, however, that if any such
period would be affected by a reduction in Commitments as provided in
Section 2.5, prepayment as provided in Section 3.5 or maturity of a
LIBOR Loan or Competitive Libor Loan as provided in Sections 2.1A or
2.1C, such period shall end on such date; and provided further that no
such LIBOR Interest Period shall end after the Termination Date.
"LIBOR LOAN" shall mean a Loan bearing interest at a rate based on LIBOR.
"LOAN" shall mean the indebtedness of the Company with respect to each advance
of funds by a Lender hereunder.
"LONDON BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which
banks are open for business in London, England and New York, New York
quoting deposit rates for Dollar deposits.
"MAJORITY LENDERS" shall mean Lenders with an aggregate of sixty-six and
two-thirds percent (66 2/3%) or more of the Commitments (or, if the
Commitments have been terminated, outstanding Loans) on the relevant
date.
"MARGIN" shall mean seventeen and one-half (17 1/2) basis points.
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of
Consolidated Net Worth.
"MONEY MARKET NOTE" shall mean a Note or Notes executed and delivered pursuant
to Section 2.1B.
"MONEY MARKET RATE" shall mean, with respect to any period of days selected by
the Company commencing on the applicable borrowing date for a Money
Market Rate Loan, the rate of interest per annum quoted by any Lender
to the Company for such Money Market Rate Loan.
"MONEY MARKET RATE LOAN" shall mean a Loan with an interest rate equal to the
Money Market Rate and as otherwise defined in Section 2.1B.
"NOTE" or "NOTES" shall mean a note or notes executed and delivered pursuant to
Sections 2.1A, 2.1B or 2.1C.
"NOTICE" shall mean a notice given pursuant to Section 10.5.
"OTHER FEES" shall mean the annual administration fee to be paid by the Company
to CBT and the auction administration fee to be paid by the Company to
Chase pursuant to the Fee Letter ("Fee Letter") dated November 12, 1996
by and among the Company, CBT, Chase and Chase Securities, Inc.
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"OUTSTANDING MAJORITY LENDERS" shall mean Lenders with an aggregate of sixty-six
and two-thirds percent (66 2/3%) or more of the principal amount of
Loans on the relevant date.
"PERCENTAGE" shall mean, as to any Lender (as set forth on such Lender's
signature page hereof), the percentage of such Lender's share of the
total Commitments of all Lenders; provided that if the Commitments are
terminated or reduced pursuant to this Agreement, then "Percentage"
shall mean the percentage of such Lender's share of the total
Commitments of all Lenders immediately prior to the termination or
after the reduction of Commitments (giving effect to any subsequent
assignments pursuant to Section 10.9).
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), sponsored and maintained by the
Company, any Consolidated Subsidiary, or any member of a controlled
group of corporations, as the term "controlled group of corporations"
is defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Company or any Consolidated Subsidiary is a part,
for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to the Company
which constitutes, or which with the lapse of any applicable grace
period or the giving of notice or both would constitute, any Event of
Default and which has not been appropriately waived by the Lenders in
writing or fully corrected prior to becoming an Event of Default.
"REFERENCE LENDER" shall mean Chase or any successor Lender appointed by the
Company, and satisfactory to the holders of fifty-one percent (51%) by
amount of the Commitments or Loans, as the case may be, at any time,
upon thirty (30) days prior written notice to the Lenders, to act as
the Reference Lender pursuant to the terms of this Agreement.
"REGULATORY CHANGE" shall mean, as to any Lender, any change in United States
federal, state or foreign laws or regulations or the adoption or making
of any interpretations, directives, guidelines or requests of or under
any United States federal, state or foreign laws, treaties or
regulations, in each case, enacted after the Effective Date (whether or
not having the force of law) by any court or governmental authority
charged with the interpretation or administration thereof.
"RELATED WRITING" shall mean any assignment, mortgage, security agreement,
subordination agreement, financial statement, audit report or other
writing furnished by the Company or any of its officers to the Lenders
pursuant to or otherwise in connection with this Agreement.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the
Secretary of Labor under Section 110 of ERISA.
"RESERVE PERCENTAGE" shall mean, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement (including, but not limited to, any
margin reserve requirement and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) which
is imposed on (a) commercial time deposits having an original maturity
of one (1) year or less and which is applicable to the class of banks
of which the Administrative Agent is a member; or (b) a Lender with
respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits, as the case may be.
"REVOLVING CREDIT LOAN" shall mean a Loan evidenced by a Revolving Credit Note.
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"REVOLVING CREDIT NOTE" shall mean a Note evidencing a Loan described in Section
2.1A.
"SUBORDINATED INDEBTEDNESS" shall mean an indebtedness which has been
subordinated (by written terms or agreement being in form and substance
reasonably satisfactory to the holders of fifty-one percent (51%) by
amount of the Commitments) in favor of the prior payment in full of the
Company's Debt to the Lenders.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority of
the outstanding capital stock or voting power, or both, of which is (or
upon the exercise of all outstanding warrants, options and other rights
would be) owned at the time in question by the Company or by another
such corporation(s) or by any combination of the Company and such
corporation(s).
"TERMINATION DATE" shall mean 12:01 a.m. New York time on such date which is
three hundred sixty-four (364) days from the Effective Date; provided,
however, the Company may within ninety (90) days prior to the
Termination Date, by notice to the Administrative Agent, make written
requests to the Lenders to extend the scheduled Termination Date for an
additional period of three hundred sixty-four (364) days. The
Administrative Agent shall give prompt written notice to each Lender of
the receipt of such request. Each Lender shall make a determination not
more than sixty (60) nor less than fifty-five (55) days prior to the
Termination Date whether it will extend the Termination Date as
requested; provided, however, the failure by any Lender to make a
timely response to the Company's request for an extension shall be
deemed to constitute a refusal by such Lender to extend the Termination
Date. If, in response to a request for an extension of the Termination
Date one or more Lenders fail to agree to the requested extension
("Disapproving Lenders"), then the Company may elect to either (a)
continue this Agreement at the same level of Commitments by replacing
each of the Disapproving Lenders in accordance with Section 2.5, or (b)
provided the requested extension is approved by at least fifty-one
percent (51%) of the Lenders with Commitments hereunder (including for
purposes hereof any replacement Lender(s) which may replace a
Disapproving Lender ("Approving Lenders")), extend and continue this
Agreement at a lower aggregate amount equal to the Commitments held by
the Approving Lenders. In any such case, (i) the Termination Date
relating to the Commitments held by the Disapproving Lenders shall
remain as then in effect with repayment of any Notes held by such
Disapproving Lenders being due on their due date and the termination of
their respective Commitments on the Termination Date, and (ii) the
Termination Date relating to the Commitments held by the Approving
Lenders shall be extended by an additional period of three hundred
sixty-four (364) days.
"TRANSACTIONS" shall mean the execution, delivery and performance by the Company
of this Agreement and the borrowings contemplated hereunder.
"VOTING STOCK" shall mean stock of a corporation of a class or classes having
general voting power under ordinary circumstances to elect a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not the stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated Subsidiary
all of whose outstanding stock, other than directors' qualifying
shares, shall at the time be owned by the Company and/or by one or more
Wholly-Owned Consolidated Subsidiaries.
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"FIVE YEAR FACILITY" shall mean the Amended and Restated Five Year Revolving
Credit Agreement, dated January 3, 2000, by and among the Company as
borrower, CBT as Administrative Agent, Chase as the Competitive Advance
Facility Agent and certain or all of the Lenders.
Any accounting term not specifically defined in this Article shall have
the meaning ascribed thereto by generally accepted accounting principles in
effect as of the date of the Company's then most recent Financial Reports unless
otherwise indicated.
The foregoing definitions shall be applicable to the singular and
plural of such defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms and conditions
of this Agreement each Lender will participate to the extent
hereinafter provided in making Loans to the Company in such aggregate
amounts as the Company shall request; provided, however, that in no
event shall the aggregate principal amount of all Loans outstanding
under this Agreement during the Commitment Period be in excess of the
Commitments which, on the date hereof, total One Hundred Thirty-Four
Million Four Hundred Thousand Dollars ($134,400,000).
A. REVOLVING CREDIT LOANS
(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the terms and
conditions of this Agreement, during the Commitment Period
each Lender will make a Loan or Loans to the Company, pursuant
to this Section 2.1A, in such amount or amounts as the Company
may request from time to time but not exceeding in aggregate
principal amount, at any one time outstanding hereunder, the
Commitment of such Lender. Subject to the provisions of this
Agreement, the Company shall be entitled under this Paragraph
A to borrow funds, repay the same in whole or in part, and
reborrow hereunder at any time and from time to time during
the Commitment Period. Each Loan made under this Paragraph A
shall be made pro-rata according to the Lenders' respective
Commitments.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1A up to the total of all the Commitments by
means of any combination of:
(a) Alternate Base Rate Loans which shall be payable on
their respective due dates and shall be drawn down in
aggregate amounts of not less than Five Million
Dollars ($5,000,000) or any greater amount evenly
divisible by One Million Dollars ($1,000,000); and
(b) LIBOR Loans, which shall be payable on the last day
of the relevant LIBOR Interest Period and shall be
drawn down in aggregate amounts of not less than Five
Million Dollars ($5,000,000) or any greater amount
evenly divisible by One Million Dollars ($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing under
this Section 2.1A shall be as follows:
(a) Each such borrowing shall be made upon the Company's
written notice ("Notice") to the Administrative Agent
(which Notice must be received by the Administrative
Agent prior to 11:00 a.m. New York time three (3)
London
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Banking Days prior to the requested borrowing date in
the event of a LIBOR Loan and by 11:00 a.m. New York
time on the same Banking Day of the proposed date of
such borrowing in the event of an Alternate Base Rate
Loan). The Notice shall specify:
(1) the amount of such borrowing;
(2) the requested borrowing date which shall be
a Banking Day or a London Banking Day, as
the case may be;
(3) the type of Loan(s) comprising such
borrowing; and
(4) the duration of the LIBOR Interest Period
for any LIBOR Loan(s) and the maturity date
of any Alternate Base Rate Loan(s) (which in
either case shall not be later than the
Termination Date).
(b) The Administrative Agent shall promptly notify each
Lender of (i) its receipt of a Notice of borrowing,
(ii) the amount of each Lender's pro-rata share of
such borrowing, and (iii) the name of the Company's
bank, the Company's account number and American
Banking Association routing number of the bank at
which the Company's account is maintained and to
which such pro-rata shares shall be routed.
(c) Each Lender's pro-rata share of each Revolving Credit
Loan shall be delivered by each such Lender to the
Company not later than 3:00 p.m. New York time on the
requested borrowing date, time being of the essence,
in immediately available Dollars by wire transfer to
an account of the Company designated by the Company,
from time to time in writing to the Administrative
Agent, with the account number and American Banking
Association routing number of the bank at which such
account is maintained.
(iv) INTEREST RATES: The Company shall pay interest on Revolving
Credit Loans:
(a) at the Alternate Base Rate on the unpaid principal
amount of Alternate Base Rate Loans outstanding from
time to time from the date of receipt of funds by the
Company until paid, payable on the last Banking Day
of each calendar quarter and on the maturity date,
computed on the basis of a 365 or 366 day year as the
case may be; and
(b) at LIBOR plus the applicable Margin (converted to
percentage points) on the unpaid principal amount of
LIBOR Loans outstanding from time to time from the
date on which funds are received by the Company until
paid (computed on the basis of a year having 360 days
calculated on the basis of the actual number of days
elapsed), payable (a) on the last day of the LIBOR
Interest Period or (b) every three (3) months in the
event any such LIBOR Interest Period exceeds three
(3) months.
(v) PAYMENTS ON REVOLVING CREDIT NOTES, ETC.: All payments of
principal and interest shall be made to the Administrative
Agent in immediately available funds for the account of the
Lenders by no later than 3:00 p.m. (New York time) on the
applicable payment date. The Administrative Agent shall
promptly distribute to each Lender its ratable share of the
principal and interest received by it
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for the account of such Lender. Each Lender shall endorse each
Revolving Credit Note held by it or otherwise make appropriate
book entries evidencing each payment of principal made
thereon, it being understood, however, that any Lender's
failure to record appropriate information on the grid(s)
attached to any such Note shall in no way affect the
obligation of the Company under this Agreement or under any
such Note. Whenever any payment to be made hereunder,
including without limitation, any payment to be made on any
Note, shall be stated to be due on a day which is not a
Banking Day, such payment may be made on the next Banking Day
(but in any event not later than its maturity date) and such
extension of time shall in each case be included in the
computation of the interest payable on such Note.
Notwithstanding the previous sentence, in the case of any
LIBOR Loan, if the next Banking Day is in a month other than
the month the payment was originally due, such payment may be
made on the immediately preceding Banking Day and such
reduction of time shall in each case be considered in the
computation of the interest payable on such Note.
(vi) REVOLVING CREDIT NOTES: The obligation of the Company to repay
the Alternate Base Rate Loans and the LIBOR Loans made by each
Lender and to pay interest thereon shall be evidenced by
non-negotiable Revolving Credit Notes of the Company
substantially in the form of Schedule B hereto, with
appropriate insertions, dated the date of execution thereof by
the Company and payable to the order of such Lender on the
maturity date of such Loan, in the principal amount indicated
thereon. The principal amount of the Alternate Base Rate Loans
and the LIBOR Loans made by each Lender under this Section
2.1A and all prepayments thereof and the applicable dates with
respect thereto shall be recorded by such Lender from time to
time on the grid(s) attached to such Note or by appropriate
book entry. The aggregate unpaid amount of Alternate Base Rate
Loans and LIBOR Loans set forth on the grid(s) attached to
each Revolving Credit Note shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such
Note, it being understood, however, that any Lender's failure
to so record appropriate information on the grid(s) attached
to its respective Revolving Credit Note shall in no way affect
the obligations of the Company under this Agreement or such
Note.
(vii) INTEREST ON LATE PAYMENTS: If any Revolving Credit Note shall
not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision or
acceleration of maturity therein or herein contained, the
principal thereof and the accrued and unpaid interest thereon
shall bear interest, until paid, at a rate per annum which
shall be 1.1 times the Alternate Base Rate from time to time
in effect.
(viii) LOAN REFINANCINGS: If any Revolving Credit Loan is not repaid
when due, unless otherwise directed by the Company, and
provided no Event of Default exists, (and the Commitment
Period has not terminated), the Lenders shall refinance such
Loans with Alternate Base Rate Loans unless otherwise provided
in this Agreement. Such automatic Loans shall be deemed to
have repaid the principal in full of each prior Loan such that
no Event of Default would exist.
(ix) CONVERSION: At the Company's option, the Company may at any
time or from time to time, except if an Event of Default
exists, convert a LIBOR Loan or an Alternate Base Rate Loan to
any one of the other types of Loans; provided, however, in the
case of LIBOR Loans any such conversion may only be made on
the Interest Adjustment Date applicable thereto. Such
conversion shall not be deemed to be a prepayment. The
provisions of this subsection shall apply with respect to
voluntary
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conversions or conversions required hereunder. The Company,
through the Administrative Agent, shall give written or
telephonic notice to the Banks of each conversion by 11:00
a.m., New York time (a) on the date of such conversion if such
conversion is to Alternate Base Rate Loans, and (b) at least
two (2) London Banking Days prior to the date of such
conversion if such conversion is to LIBOR Loans. Each such
notice shall be effective upon receipt by the relevant Lender
and shall specify the date and amount of such conversion, the
type of Loans to be converted and the type of Loans to be
converted into. Each conversion shall be in an aggregate
amount of not less than Five Million Dollars ($5,000,000) or
any greater amount evenly divisible by One Million Dollars
($1,000,000).
(x) PREPAYMENT.
(a) As to Alternate Base Rate Loans, the Company shall
have the right at any time or from time to time, upon
one (1) Banking Days' prior written notice to the
Administrative Agent, without the payment of any
premium or penalty to prepay on a pro-rata basis, all
or any part of the principal amount of the Revolving
Credit Notes then outstanding as designated by the
Company plus interest accrued on the amount so
prepaid to the date of such prepayment.
(b) As to LIBOR Loans, the Company shall have the right
at any time or from time to time, upon four (4)
London Banking Days' prior written notice to the
Administrative Agent, to prepay on a pro-rata basis,
all or any part of the principal amount of the
Revolving Credit Notes then outstanding as designated
by the Company, plus interest accrued on the amount
so prepaid to the date of such prepayment. If LIBOR,
as determined as of 11:00 a.m. London time three (3)
London Banking Days prior to the date of prepayment
(hereinafter "Prepayment LIBOR"), shall be lower than
the last LIBOR previously determined for the LIBOR
Loan(s), with respect to which prepayment is intended
to be made (hereinafter "Last LIBOR"), then the
Company shall promptly pay each of the Lenders, in
immediately available funds, a prepayment premium
measured by a rate (the "Prepayment Premium Rate")
which shall be equal to the difference between the
Last LIBOR and the Prepayment LIBOR. In determining
the Prepayment LIBOR, the Company shall apply a rate
equal to LIBOR (for a deposit approximately equal to
the amount of such prepayment) which would be
applicable to a LIBOR Interest Period commencing on
the date of such prepayment and having a duration
equal to the LIBOR Interest Period described in
Article I hereof with a length closest to the
remaining duration of the actual LIBOR Interest
Period during which such prepayment is to be made.
The Prepayment Premium Rate shall be applied to all
or such part of the principal amount of the Revolving
Credit Notes as related to the LIBOR Loans to be
prepaid, and the prepayment premium shall be computed
for the period commencing with the date on which said
prepayment is to be made to that date which coincides
with the last day of the LIBOR Interest Period
previously established when the LIBOR Loans, which
are to be prepaid, were made. Each prepayment of a
LIBOR Loan shall be in the aggregate principal sum of
not less than One Million Dollars ($1,000,000).
Notwithstanding the above, no prepayment premium
shall be due and owing by the Company if the Company
makes such payment on the Interest Adjustment Date
applicable to the Loan being paid. In the event the
Company fails to borrow or convert into a proposed
LIBOR Loan subsequent to the delivery to the Lenders
of the notice of the proposed date,
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aggregate amount and initial LIBOR Interest Period of
such Loan, but prior to the draw down of funds
thereunder, such failure to borrow or convert shall
be treated as a prepayment subject to such prepayment
premium.
B. MONEY MARKET RATE LOANS
(i) BORROWING RESTRICTIONS: Subject to the terms and conditions of
this Agreement, during the Commitment Period each Lender may
make (but is not obligated to make) a Money Market Rate Loan
to the Company in such amount or amounts as the Company may
from time to time request, provided that the sum of the total
Loans outstanding under Sections 2.1A and 2.1B plus the
aggregate principal amount of outstanding Competitive Loans at
any time shall not exceed the Commitments which, as of the
date hereof, total One Hundred Thirty-Four Million Four
Hundred Thousand Dollars ($134,400,000). Subject to the
provisions of this Agreement, the Company shall be entitled
under this Paragraph B to borrow funds, repay the same in
whole or in part and reborrow hereunder at any time and from
time to time from any Lender making Money Market Rate Loans to
the Company. The Administrative Agent shall not be involved,
in its capacity as such agent, in any borrowing(s) by the
Company under this Section 2.1B; provided, however, the
Administrative Agent shall be advised by the Company of each
such borrowing hereunder. The procedures for any such Loan
shall be as agreed upon by the Company and each Lender making
a Loan under this Paragraph B.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1B from any Lender that agrees to make such a
Loan, an amount not to exceed the total of all Commitments in
amounts of not less than Five Million Dollars ($5,000,000) or
any greater amount evenly divisible by One Million Dollars
($1,000,000).
(iii) INTEREST RATES: The Company shall pay interest on the unpaid
principal amount of any Money Market Rate Loan outstanding
from time to time from the date on which funds are received by
the Company until paid, at the Money Market Rate. Except as
may be otherwise agreed by the Company and the Lender making a
Money Market Rate Loan, interest shall be payable at the
maturity of such Loan and shall be computed on the basis of a
365 or 366 day year, as the case may be.
(iv) MONEY MARKET NOTES: The obligation of the Company to repay
Money Market Rate Loans and to pay interest thereon, shall be
evidenced by a Money Market Note substantially in the form of
Schedule C hereto, dated the date of execution thereof by the
Company and payable to the order of the applicable Lender in
accordance with the terms and conditions of such Money Market
Note.
(v) PAYMENT: All payments of principal and interest due on Money
Market Rate Loans shall be paid by the Company directly to any
Lender making a Money Market Rate Loan to the Company. Any
such Loans hereunder shall be paid on the date specified in
the applicable Money Market Note.
(vi) INTEREST ON LATE PAYMENTS: If any Money Market Note shall not
be paid at maturity, whether such maturity occurs by reason of
lapse of time or by operation of any provision of acceleration
of maturity therein contained, the principal thereof and the
unpaid interest thereon shall bear interest, until paid, at a
rate per annum which shall be 1.1 times the Alternate Base
Rate from time to time in effect.
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C. COMPETITIVE BID LOANS
(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the terms and
conditions of this Agreement, during the Commitment Period the
Company may request Competitive Bids and may (but shall not
have any obligation to) accept Competitive Bids and borrow
Competitive Loans provided that the sum of the total Loans
outstanding under Sections 2.1A and 2.1B plus the aggregate
principal amount of outstanding Competitive Loans at any time
shall not exceed the Commitments which, on the date hereof,
total One Hundred Thirty-Four Million Four Hundred Thousand
Dollars ($134,400,000). Subject to the provisions of this
Agreement, the Company may, if a Competitive Bid is submitted
by a Lender, borrow funds under this Paragraph C, repay the
same in whole or in part, and reborrow hereunder at any time
and from time to time during the Commitment Period.
(ii) LOAN AMOUNTS: The Company shall have the option, subject to
the terms and conditions set forth herein, to borrow under
this Section 2.1C up to the principal amount of the
Commitments which, on the date hereof, total One Hundred
Thirty-Four Million Four Hundred Thousand Dollars
($134,400,000) by means of any combination of:
(a) Fixed Rate Loans which shall be payable on their
respective due dates and shall be drawn down in
aggregate amounts of not less than Five Million
Dollars ($5,000,000) or any greater amount evenly
divisible by One Million Dollars ($1,000,000); and
(b) Competitive Libor Loans which shall be payable on the
last date of their Competitive Libor Interest Period
and shall be drawn down in aggregate amounts of not
less than Five Million Dollars ($5,000,000) or any
greater amount evenly divisible by One Million
Dollars ($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing under
this Section 2.1C shall be as follows:
(a) Each such borrowing shall be made by Notice to the
Competitive Advance Facility Agent (which Notice must
be received by the Competitive Advance Facility Agent
prior to 11:00 a.m. New York time four (4) London
Banking Days prior to the requested borrowing date in
the event of a Competitive Libor Loan and by 11:00
a.m. New York time one Banking Day prior to the
proposed date of such borrowing in the event of a
Fixed Rate Loan). Such Notice shall specify:
(1) the amount of such borrowing;
(2) the requested borrowing date which shall be
a Banking Day or a London Banking Day, as
the case may be;
(3) the type of Loan(s) comprising such
borrowing; and
(4) the duration of the Competitive Libor
Interest Period for any Competitive Libor
Loan and the maturity date of any Fixed Rate
Loan(s).
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(b) The Competitive Advance Facility Agent shall promptly
notify each Lender of its receipt of a request for a
Competitive Loan thereby inviting the Lenders to
submit Competitive Bids. Any such notice shall
identify the name of the Company's bank, the
Company's account number and American Banking
Association routing number of the bank at which the
Company's account is maintained and to which the
proceeds from any Competitive Loan shall be routed.
(c) Each Lender may (but shall not have any obligation
to) make one or more Competitive Bids to the Company
in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form
approved by the Competitive Advance Facility Agent
and must be received by the Competitive Advance
Facility Agent by telecopy, in the case of a
Competitive Libor Loan, not later than 10:00 a.m.,
New York time, three (3) London Banking Days before
the proposed date of such Competitive Borrowing, and
in the case of an Fixed Rate Loan, not later than
10:00 a.m., New York time, on the proposed date of
such Competitive Borrowing. Competitive Bids that do
not conform substantially to the form approved by the
Competitive Advance Facility Agent may be rejected by
the Competitive Advance Facility Agent, and the
Competitive Advance Facility Agent shall notify the
applicable Lender as promptly as practicable. Each
Competitive Bid shall be in aggregate amounts of not
less than Five Million Dollars ($5,000,000) or any
greater amount evenly divisible by One Million
Dollars ($1,000,000) and may equal the entire
principal amount of the Competitive Borrowing
requested by the Company. Each Competitive Bid shall
specify (i) the Competitive Bid Rate(s) at which the
Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form
of a decimal to no more than four decimal places) and
(ii) in the case of a Competitive Libor Loan, the
Competitive Libor Interest Period applicable to each
such Loan and the last day thereof.
(d) The Competitive Advance Facility Agent shall promptly
notify the Company by telecopy of the Competitive Bid
Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that
made such Competitive Bid.
(e) Subject only to the provisions of this paragraph, the
Company may accept or reject any Competitive Bid. The
Company shall notify the Competitive Advance Facility
Agent by telephone, confirmed by telecopy in a form
approved by the Competitive Advance Facility Agent,
whether and to what extent it has decided to accept
or reject each Competitive Bid, in the case of a
Competitive Libor Loan, not later than 11:00 a.m.,
New York time, three (3) London Banking Days before
the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Loan, not later than
11:00 a.m., New York time, on the proposed date of
the Competitive Borrowing; provided that (i) the
failure of the Company to give such notice shall be
deemed to be a rejection of each Competitive Bid,
(ii) the Company shall not accept a Competitive Bid
made at a particular Competitive Bid Rate if the
Company rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of
the Competitive Bids accepted by the Company shall
not exceed the aggregate amount of the requested
Competitive
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Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with
clause (iii) above, the Company may accept
Competitive Bids at the same Competitive Bid Rate in
part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall
be made pro-rata in accordance with the amount of
each such Competitive Bid, and (v) except as
otherwise provided in clause (iv) above, no
Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum
principal amount of Five Million Dollars ($5,000,000)
or any greater amount evenly divisible by One Million
Dollars ($1,000,000); provided further that if a
Competitive Loan must be in an amount less than Five
Million Dollars ($5,000,000) because of the
provisions of clause (iv) above, such Competitive
Loan may be for a minimum of One Million Dollars
($1,000,000) or any integral multiple thereof, and in
calculating the pro-rata allocation of acceptances of
portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples of One
Million Dollars ($1,000,000) in a manner determined
by the Company.
(f) The Competitive Advance Facility Agent shall promptly
notify each bidding Lender by telecopy whether or not
its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and
each successful bidder will thereupon become bound,
subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(g) If the Competitive Advance Facility Agent shall elect
to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive Bid directly
to the Company at least one quarter of an hour
earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the
Competitive Advance Facility Agent pursuant to
paragraph (b) of this Section.
(iv) INTEREST RATES: Interest shall accrue at the Competitive Bid
Rate specified in the applicable Competitive Bid, unless
otherwise agreed by the Lender submitting such Competitive Bid
and the Company.
(v) PAYMENTS ON COMPETITIVE NOTES: All payments of principal and
interest shall be made to the Competitive Advance Facility
Agent in immediately available funds for the account of the
Lenders by no later than 3:00 p.m. (New York time) on the
applicable payment date which date shall be specified on the
applicable Competitive Note. The Competitive Advance Facility
Agent shall promptly distribute to each Lender the principal
and interest received by it for the account of such Lender.
Each Lender having made a Competitive Loan hereunder shall
endorse each Competitive Note held by it or otherwise make
appropriate book entries evidencing each payment of principal
made thereon, it being understood, however, that any Lender's
failure to record appropriate information on the grid(s)
attached to any such Note shall in no way affect the
obligation of the Company under this Agreement or under any
such Note. Whenever any payment to be made hereunder,
including without limitation, any payment to be made on any
Note, shall be stated to be due on a day which is not a
Banking Day, or a London Banking Day as the case may be, such
payment shall be made on the next Banking Day (but in any
event not later than its maturity date) and such extension of
time shall in each case be included in the computation of the
interest payable on such Note. Notwithstanding the previous
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sentence, in the case of any Competitive Libor Loan, if the
next London Banking Day is in a month other than the month the
payment was originally due, such payment may be made on the
immediately preceding London Banking Day and such reduction of
time shall in each case be considered in the computation of
the interest payable on such Note.
(vi) COMPETITIVE NOTES: The obligation of the Company to repay the
Fixed Rate Loans and the Competitive Libor Loans made by any
Lender and to pay interest thereon shall be evidenced by
non-negotiable Competitive Notes of the Company substantially
in the form of Schedule D hereto, with appropriate insertions,
dated the date of execution thereof by the Company and payable
to the order of such Lender on the maturity date of such Loan,
in the principal amount indicated thereon. The principal
amount of the Fixed Rate Loans and the Competitive Libor Loans
made by each Lender under this Section 2.1C and all
prepayments thereof and the applicable dates with respect
thereto shall be recorded by such Lender from time to time on
the grid(s) attached to such Note or by appropriate book
entry. The aggregate unpaid amount of Fixed Rate Loans and
Competitive Libor Loans set forth on the grid(s) attached to
each Competitive Note shall be rebuttable presumptive evidence
of the principal amount owing and unpaid on such Note, it
being understood, however, that any Lender's failure to so
record appropriate information on the grid(s) attached to its
respective Competitive Note shall in no way affect the
obligations of the Company under this Agreement or such Note.
(vii) PREPAYMENT: The Company shall not have any right to prepay any
Competitive Loan without the prior consent of the Lender
having made such Loan.
SECTION 2.2. CONDITIONS TO CERTAIN LOANS OR CONVERSIONS. The obligation or right
of each Lender to make any of the Loans or to convert any of the Loans
described in Sections 2.1A, 2.1B or 2.1C hereunder is conditioned, in
the case of each borrowing or conversion hereunder, upon:
(i) the fact that no Possible Default or Event of Default shall
then exist or immediately after such Loan is made would exist;
and
(ii) the fact that the representations and warranties contained in
Article IV hereof shall be true and correct in all material
respects with the same force and effect as if made on and as
of the date of such borrowing or conversion.
Each borrowing or conversion by the Company hereunder shall be deemed
to be a representation and warranty by the Company as of the date of
such borrowing or conversion as to the facts specified in Sections 2.2
(i) and (ii) above.
SECTION 2.3. FACILITY FEE. The Company agrees to pay to each Lender a Facility
Fee, for the period from and including the date of this Agreement until
the Commitments have terminated and the outstanding Loans have been
repaid. The first payment of the Facility Fee shall be made no later
than March 31, 1997 for the period January 3, 1997 to March 31, 1997.
All payments of the Facility Fee shall be made to the Administrative
Agent in immediately available funds for the account of the Lenders by
no later than 3:00 p.m. (New York time) on the applicable payment date.
The Administrative Agent shall promptly distribute to each Lender its
ratable share of the Facility Fee received by it for the account of
such Lender.
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SECTION 2.4. COMPUTATION OF FACILITY FEES. Facility Fees shall be computed for
the actual number of days elapsed on the basis of a 360 day year.
SECTION 2.5. TERMINATION OF COMMITMENTS AND RIGHT OF SUBSTITUTION.
(i) The Company may at any time or from time to time terminate in
whole or ratably in part the Commitments of all of the Lenders
to an amount not less than the aggregate principal amount of
the Loans then outstanding under this Agreement, by giving the
Lenders and the Administrative Agent not less than two (2)
Banking Days' notice of the aggregate amount of such
termination (which shall not be less than Five Million Dollars
($5,000,000) or any greater amount evenly divisible by One
Million Dollars ($1,000,000)) and such Lender's proportionate
amount of such termination. If the Company terminates in whole
the Commitments of the Lenders, on the effective date of such
termination (provided the Company has prepaid in full the
unpaid principal balance, if any, of the Notes outstanding
together with all accrued and unpaid interest, if any,
Facility Fees accrued and unpaid, and any applicable
prepayment premiums) all of the Notes outstanding shall be
delivered to the Company marked "Cancelled". Any termination
of the Commitments shall be irrevocable during the remainder
of the Commitment Period.
(ii) The Company may at any time or from time to time terminate or
reduce the Commitment of any Lender hereunder to an amount not
less than the aggregate principal amount of the Loans then
outstanding held by such Lender under this Agreement:
(a) immediately if such Lender satisfies any of the
criteria for insolvency described in Section 7.5
hereof; or
(b) upon not less than two (2) Banking Days' notice to
such Lender and the Administrative Agent if the
Company, in its sole discretion, elects to terminate
the Commitment of such Lender for any reason
including, but not limited to, the default of such
Lender under the terms of this Agreement.
(iii) In the event the Commitment of any Lender is terminated by the
Company, the Company shall replace such Lender with a
successor Lender or banks (including any Lender or Lenders
which is a party to this Agreement with the consent of such
Lender or Lenders) with a Commitment not to exceed the
Commitment of the terminated Lender(s); provided that such
successor Lender shall, pursuant to a written instrument in
form and substance satisfactory to the Company, effectively
agree to become a party hereto and a "Lender" hereunder and be
bound by the terms hereof.
(iv) In the event of a default of any Lender under the terms of
this Agreement, the Company's election to terminate the
Commitment of such Lender shall not act as a waiver of any
other remedies which the Company may have for such default.
(v) The termination of the Commitment of any Lender pursuant to
Section 2.5(ii) shall not affect the Commitments or the
obligations of all remaining Lenders under this Agreement.
(vi) After any termination or reduction of the Commitments as
described in this Section 2.5, the Facility Fees payable
hereunder shall be calculated upon the Commitments of the
Lenders as so reduced.
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ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS AND
FIXED RATE LOANS
SECTION 3.1. RESERVES OR DEPOSIT REQUIREMENTS, ETC. If at any time after the
Effective Date any Regulatory Change shall impose, modify or deem
applicable any reserve and/or special deposit requirement (other than
reserves: (a) included in the Reserve Percentage, the effect of which
is reflected in the interest rate(s) of the LIBOR Loan(s) or
Competitive Libor Loan(s) in question or (b) attributable to
requirements imposed by the Board of Governors of the Federal Reserve
System on any Lender as a result of the failure of any such Lender to
maintain necessary current capitalization or financial conditions
imposed thereby) against assets held by, or deposits in or for the
account of any Loans by any Lender, and the result of the foregoing is
to increase the cost to such Lender of making or maintaining LIBOR
Loans or Competitive Libor Loans, as the case may be, or reduce the
amount of principal or interest received by such Lender with respect to
LIBOR Loans or Competitive Libor Loans, then upon demand by such Lender
the Company shall pay to such Lender from time to time on Interest
Adjustment Dates with respect to such Loans, as additional
consideration hereunder, additional amounts sufficient to fully
compensate and indemnify such Lender for such increased cost or reduced
amount, provided that such additional cost or reduced amount were
allocable to such LIBOR Loans or Competitive Libor Loans.
A certificate as to the increased cost or reduced amount
(hereinafter in this Section 3.1 collectively called "Increased Costs")
as a result of any event mentioned in this Section 3.1, setting forth
the calculations therefor, shall be promptly submitted by such Lender
to the Company for its review. The Company shall pay such Increased
Costs for such period of time prior to the date such certificate is
received by the Company during which such Regulatory Change, by its
terms, applies retroactively to any period of time prior to the date
such Regulatory Change became effective. In addition, the Company shall
pay such Increased Costs incurred by a Lender on and after the date
such certificate is received by the Company unless, and until, the
Company, notwithstanding any other provision of this Agreement,
(i) upon at least three (3) Banking Days' prior written notice to
such Lender, prepays the affected LIBOR Loans in full or
converts all LIBOR Loans to Alternate Base Rate Loans
regardless of the LIBOR Interest Period thereof, or
(ii) terminates the Commitment of such Lender pursuant to Section
2.5 (provided that the Company shall pay such Increased Costs
on any LIBOR Loans from such Lender which remain outstanding).
Each Lender will notify the Company as promptly as practicable of the
existence of any event which will likely require the payment by the
Company of any such additional amount under this Section.
SECTION 3.2. CHANGES IN TAX LAWS. In the event that by reason of any Regulatory
Change of the jurisdiction where the office of the Lender making a Loan
is located, (i) any Lender shall, with respect to this Agreement or any
transaction under this Agreement, be subject to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever
(other than any tax imposed upon the total net income of such Lender or
imposed on or calculated with respect to the value of the assets of
such Lender) or (ii) any change shall occur in the taxation of any
Lender with respect to any Loan and the interest payable thereon (other
than any change which affects, and to the extent that it affects, the
taxation of the total net income of such Lender or imposed on or
calculated with respect to the value of the assets of such Lender), and
if any such measures or any other similar measure shall result in an
increase in the cost to such Lender of making or maintaining any Loan
or
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in a reduction in the amount of principal, interest or Facility Fee receivable
by such Lender in respect thereof, then such Lender shall promptly notify the
Company stating the reasons therefor.
A certificate as to any such increased cost or reduced amount
(hereinafter in this Section 3.2 collectively called "Increased Taxes") as a
result of any event mentioned in this Section 3.2, setting forth the
calculations therefor, shall be submitted by such Lender to the Company for its
review. The Company shall pay such Increased Taxes for such period of time prior
to the date such certificate is received by the Company during which such
Regulatory Change, by its terms, applies retroactively to any period of time
prior to the date such Regulatory Change became effective. In addition, the
Company shall pay such Increased Taxes incurred by such Lender on and after the
date such certificate is received by the Company unless and until the Company,
notwithstanding any other provision of this Agreement,
(i) upon at least three (3) Banking Days' prior written notice to
such Lender and the Administrative Agent, prepays the affected
Loans in full, or
(ii) terminates the Commitment of such Lender pursuant to Section
2.5 hereof (provided that the Company shall pay such Increased
Costs on any Loans from such Lender which remain outstanding).
If any Lender receives such additional consideration from the Company
pursuant to this Section 3.2 and thereafter obtains the benefits of any refund,
deduction or credit for any taxes or other amounts on account of which such
additional consideration has been paid, such Lender shall pay to the Company its
allocable share thereof and shall reimburse the Company to the extent, but only
to the extent, that such Lender shall have actually received a refund of such
taxes or other amounts together with any interest thereon or an effective net
reduction in taxes or other governmental charges (including any taxes imposed on
or measured by the total net income of such Lender) of the United States or any
state or subdivision thereof by virtue of any such deduction or credit, after
first giving effect to all other deductions and credits otherwise available to
such Lender. If, at the time any audit of such Lender's income tax return by any
taxing agency is completed, such Lender determines, based on such audit, that it
was not entitled to the full amount of any refund reimbursed to the Company as
aforesaid or that its net income taxes are not reduced by a credit or deduction
for the full amount of taxes reimbursed to the Company as aforesaid, the
Company, upon demand of such Lender, will promptly pay to such Lender the amount
so refunded to which such Lender was not so entitled, or the amount by which the
net income taxes of such Lender were not so reduced, as the case may be. The
provisions of this Section 3.2 and Section 3.1 shall survive the termination of
this Agreement.
SECTION 3.3. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE.
In the event the Majority Lenders shall have determined, in good faith
and reasonably, that Dollar deposits of the relevant amount for the
relevant LIBOR Interest Period for LIBOR Loans are not available to the
Lenders in the London Interbank Eurodollar market or that, by reason of
circumstances affecting such market, adequate and reasonable means do
not exist for ascertaining LIBOR then (i) any notice of new LIBOR Loans
(or conversion of Revolving Credit Loans to LIBOR Loans) previously
given by the Company and not yet borrowed (or converted, as the case
may be) shall be deemed a notice to make Alternate Base Rate Loans
unless the Company notifies the Administrative Agent to the contrary,
and (ii) the Company shall be obligated either to prepay or to convert
any outstanding LIBOR Loans on the last day of the then current LIBOR
Interest Period or Periods with respect thereto.
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SECTION 3.4. INDEMNITY. Without limitation of any other provisions of this
Article III, the Company hereby agrees to indemnify and hold harmless
each of CBT, Chase and each Lender from and against all costs, expenses
(including fees, charges and disbursements of counsel) and liabilities
resulting from any litigation or other proceedings (regardless of
whether CBT, Chase or any Lender is a party thereto), related to or
arising out of the Transactions contemplated hereby, except to the
extent such costs, expenses and liabilities result from the wilful
misconduct or gross negligence of the party seeking indemnification as
determined by a court of competent jurisdiction, excluding
consequential, incidental or special damages. A certificate as to any
such loss or expense shall be promptly submitted by CBT, Chase and any
such Lender to the Company for its review and shall be paid by the
Company in the absence of manifest error.
SECTION 3.5. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time any
Regulatory Change shall make it unlawful for any Lender to fund,
refinance, continue or convert into any LIBOR Loans which it is
committed to make hereunder with moneys obtained in the London
Interbank Eurodollar market, the Commitment of such Lender to fund,
refinance, continue or convert into LIBOR Loans shall, upon the
happening of such event, be suspended for the duration of such
illegality and such Lender shall by written notice to the Company and
the Administrative Agent declare that its Commitment with respect to
such Loans has been so suspended and, if and when such illegality
ceases to exist, such suspension shall cease and such Lender shall
similarly notify the Company and the Administrative Agent. If any such
change shall make it unlawful for any Lender to continue in effect the
funding in the London Interbank Eurodollar market of any LIBOR Loan
previously made by it hereunder, such Lender shall, upon the happening
of such event, notify the Company and the other Lenders thereof in
writing stating the reasons therefor and the Company shall, on the
earlier of (i) the last day of the then current LIBOR Interest Period
or (ii) if required by such law, regulation or interpretation, on such
date as shall be specified in such notice, either convert all LIBOR
Loans to Alternate Base Rate Loans or prepay all LIBOR Loans to the
Lenders in full. Any such prepayment or conversion shall not be subject
to the prepayment premiums prescribed in Section 2.1A(x) hereof. Any
requests for a LIBOR Loan not funded pursuant to this Section shall be
deemed to have been a request for an Alternate Base Rate Loan.
SECTION 3.6. FUNDING. Each Lender may, but shall not be required to, make LIBOR
Loans and Competitive Libor Loans with funds obtained outside the
United States.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 4.1. CORPORATE EXISTENCE. The Company is a corporation duly organized
and in good standing under the laws of the State of Ohio.
SECTION 4.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by the Company of this Agreement, the Notes and Related
Writings are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not and will not
contravene or conflict with any provision of applicable law or any
applicable final judgement in effect or of the Amended Articles of
Incorporation or Regulations of the Company or of any agreement for
borrowed money or other material agreement binding upon the Company.
The Company has duly executed and delivered this Agreement.
SECTION 4.3. VALIDITY AND BINDING NATURE. This Agreement is, and the Notes when
duly executed and delivered will be, legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms.
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SECTION 4.4. LITIGATION AND LIENS. To the best of the Company's knowledge, no
litigation or proceeding is pending which would, if successful, have a
Material adverse impact on the financial condition of the Company and
the Consolidated Subsidiaries taken as a whole, which is not already
reflected in the Company's Financial Reports delivered to the Lenders
prior to the date of this Agreement. The Internal Revenue Service has
not alleged any Material default by the Company in the payment of any
tax or threatened to make any Material assessment in respect thereof
which would have or reasonably could have a Material adverse impact on
the financial condition of the Company and the Consolidated
Subsidiaries, taken as a whole.
SECTION 4.5. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency
within the meaning of ERISA and the regulations thereunder. No
Reportable Event has occurred with respect to any Plan which would have
a Material adverse financial impact on the Company or any of its
Consolidated Subsidiaries, taken as a whole. The Pension Benefit
Guaranty Corporation, established under ERISA, has not asserted that
the Company or any Consolidated Subsidiary has incurred any Material
liability in connection with any Plan. No Material lien has been
attached and no person has threatened to attach such a lien on any
property of the Company and any Consolidated Subsidiary as a result of
the Company's or any Consolidated Subsidiary's failure to comply with
ERISA.
SECTION 4.6. ENVIRONMENTAL MATTERS. To the best of the Company's knowledge, the
Company and each Subsidiary is in substantial compliance with all
applicable existing laws and regulations (other than laws and
regulations the validity or applicability of which are being contested
by the Company or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted) relating to
environmental control in all jurisdictions where the Company or any
Subsidiary is presently doing business and the Company and each
Subsidiary (to the extent applicable to its operations) is in
substantial compliance with the Occupational Safety and Health Act of
1970 and all rules, regulations and applicable orders thereunder (other
than rules, regulations and orders the validity or applicability of
which are being contested by the Company or a Subsidiary, as the case
may be, in good faith by appropriate proceedings diligently
prosecuted).
SECTION 4.7. FINANCIAL REPORTS. The Financial Reports of the Company and the
Consolidated Subsidiaries, furnished to each Lender prior to the date
of this Agreement or from time to time pursuant to this Agreement shall
be true and complete, prepared in accordance with generally accepted
accounting principles, except as stated therein, and fairly present the
Company's and its Consolidated Subsidiaries' financial condition and
the results of their operations, as of the date, and for the period
encompassed by such Financial Reports. Since the dates of the Company's
most recent Financial Reports until the date of this Agreement there
has been no material adverse change in the consolidated financial
condition of the Company and the Consolidated Subsidiaries taken as a
whole.
SECTION 4.8. REGULATION U. Neither the Company nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or
selling margin stock or extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System). Each of the
Lenders represents and warrants to the Company that it is not relying
on and will not rely on any margin stock (as described above) in
determining whether to extend or maintain credit under this Agreement.
SECTION 4.9. GOVERNMENT REGULATION. Neither the Company nor any of its
Consolidated Subsidiaries is registered or is required to be registered
as a public utility under the Public Utility Holding Company Act of
1935 or as an investment company under the Investment Company Act of
1940.
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SECTION 4.10. TAXES. The Company and its Consolidated Subsidiaries have filed
all United States federal income tax returns and all other material tax
returns which are required to have been filed by them (subject to any
available extensions) and have paid all taxes indicated as due on such
returns except for any such taxes being contested by the Company or a
Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted (the Company having made adequate and
reasonable provision for all material taxes not yet due and payable),
if any, and all material assessments, if any.
SECTION 4.11. DEFAULTS. No Possible Default or Event of Default exists which
would have or reasonably could have a Material adverse impact on the
financial condition of the Company and the Consolidated Subsidiaries,
taken as a whole.
ARTICLE V. OPENING COVENANTS
Prior to or concurrently with the execution and delivery of this
Agreement, the Company shall furnish to each Lender, and with regard to
Section 5.6, the Administrative Agent, copies of the following:
SECTION 5.1. RESOLUTIONS. Certified copies of the resolutions of the Board of
Directors of the Company evidencing approval of the execution of this
Agreement.
SECTION 5.2. LEGAL OPINION. A favorable opinion of counsel for the Company as to
the matters referred to in Sections 4.1, 4.2, 4.3, 4.4, 4.6, 4.8 and
4.9 of this Agreement and such other matters as the Lenders may
reasonably request.
SECTION 5.3. CERTIFICATE OF INCUMBENCY. A certificate of the secretary or
assistant secretary of the Company certifying the names of the officers
of the Company authorized to sign this Agreement, and the Notes,
together with the true signatures of such officers.
SECTION 5.4. FINANCIAL REPORTS. The Financial Reports of the Company and the
Consolidated Subsidiaries, dated December 31, 1995, previously
furnished to each Lender, are true and complete, have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with those used by the Company and the Consolidated
Subsidiaries during the Company's 1995 fiscal year, except as stated
therein, and fairly present the Company's and the Consolidated
Subsidiaries' financial condition as of that date and the results of
their operations for the period then ended. Since that date there has
been no material adverse change in the Company's and the Consolidated
Subsidiaries' financial condition, properties or business taken as a
whole.
SECTION 5.5. GOOD STANDING. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of the Company and any
other legal matters relating to the Company and this Agreement, all in
form and substance satisfactory to the Administrative Agent and its
counsel.
ARTICLE VI. COVENANTS
Until the later of (i) the expiration of the Commitments or
(ii) all obligations of the Company hereunder and under the Notes are
satisfied and paid in full, the Company agrees that, unless at any
time the Majority Lenders shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. The Company will (a) maintain insurance to such extent
and against such hazards and liabilities as is commonly maintained by
companies similarly situated, and (b) upon
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any Lender's written request, furnish to such Lender such information
about the Company's and its Consolidated Subsidiaries' insurance as
such Lender may from time to time reasonably request, which information
shall be prepared in form and detail reasonably satisfactory to such
Lender.
SECTION 6.2. FINANCIAL REPORTS. The Company will furnish to the Administrative
Agent and each Lender:
(i) within sixty (60) days after the end of each of the first
three quarter-annual periods of each of its fiscal years (and,
in any event, in each case as soon as available), the
quarterly Financial Report of the Company and the Consolidated
Subsidiaries as at the end of that period, prepared on a
consolidated basis;
(ii) within ninety (90) days after the end of each of its fiscal
years (and, in any event, in each case as soon as available),
the annual Financial Report of the Company and the
Consolidated Subsidiaries for that year prepared on a
consolidated basis;
(iii) within sixty (60) days after the end of each of its quarterly
accounting periods and within ninety (90) days after the end
of its annual accounting period, a statement signed by a
financial officer of the Company reflecting compliance with
Section 6.3 hereof and to the effect that no Event of Default
has occurred and is continuing or, if there is any such event,
describing it and the steps being taken, if any, to cure such
event;
(iv) promptly after filing with the Securities and Exchange
Commission, any Form 8-K or Schedule 13D filings applicable to
the Company (or any successor forms or schedules promulgated
by the Securities and Exchange Commission from time to time
which encompass the matters currently addressed in Form 8-K
and Schedule 13D);
(v) written notice of any change in the rating assigned to the
Company's senior unsecured long-term debt by Moodys or S&P
within thirty (30) days of such change; and
(vi) such other financial information regarding the Company as any
Lender may reasonably request.
SECTION 6.3. NET WORTH. The Company will not permit Consolidated Net Worth at
any time to fall below Eight Hundred Million Dollars ($800,000,000).
SECTION 6.4. REGULATIONS U AND X. The Company will not nor will it permit any
Subsidiary to take any action that would result in any non-compliance
of the Loans with Regulations U and X of the Board of Governors of the
Federal Reserve System. The Company's use of proceeds of any borrowings
under this Agreement will not cause a violation of Regulations U or X.
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SECTION 6.5. MERGER AND SALE OF ASSETS. The Company will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or
consolidate with any other corporation or sell, lease or transfer or
otherwise dispose of all or, during any twelve (12) month period, a
substantial part of its assets to any person or entity (except as
otherwise provided herein); provided, however, if no Possible Default,
Event of Default or Change of Control (as such term is defined in
Section 6.6) shall then exist or immediately thereafter will begin to
exist:
(i) Any Consolidated Subsidiary may merge with (a) the Company
(provided that the Company shall be the continuing or
surviving corporation) or (b) any one or more other
Consolidated Subsidiaries provided that either the continuing
or surviving corporation shall be a Wholly-Owned Consolidated
Subsidiary, or after giving effect to any merger pursuant to
this sub-clause (b), the Company and/or one or more
Wholly-Owned Consolidated Subsidiaries shall own not less than
the same percentage of the outstanding Voting Stock of the
continuing or surviving corporation as the Company and/or one
or more Wholly-Owned Consolidated Subsidiaries owned of the
merged Consolidated Subsidiary immediately prior to such
merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to (a) the Company, (b)
any Wholly-Owned Consolidated Subsidiary or (c) any
Consolidated Subsidiary of which the Company and/or one or
more Wholly-Owned Consolidated Subsidiaries shall own not less
than the same percentage of Voting Stock as the Company and/or
one or more Wholly-Owned Consolidated Subsidiaries then own of
the Consolidated Subsidiary making such sale, lease, transfer
or other disposition,
(iii) The Company may sell the stock or assets of any Consolidated
Subsidiary if such sale or other disposition is determined by
the board of directors of the Company to be in the best
interests of the Company and such sale is for a consideration
which represents the fair value (as determined in good faith
by the board of directors of the Company) thereof at the time
of such sale of such stock or assets,
(iv) The Company may merge with any other corporation, provided
that the Company shall be the surviving corporation,
(v) The Company or any Consolidated Subsidiary may sell all or any
part of the assets of any of its divisions or operations if
such sale or other disposition is determined by the board of
directors of the Company and/or such Consolidated Subsidiary,
as the case may be, to be in the best interests of the Company
and/or such Consolidated Subsidiary, as the case may be, and
such sale is for a consideration which represents the fair
value (as determined in good faith by the board of directors
of the Company) thereof at the time of such sale or other
disposition of such assets, and
(vi) The Company or any Subsidiary may sell or transfer all or any
part of the assets of any of its divisions or operations to
any Subsidiary.
SECTION 6.6. CHANGE OF CONTROL. In the event there occurs a Change of Control of
the Company, the Commitments of the Lenders will immediately terminate
and the outstanding Loans will become due and payable.
A. For purposes of this Section 6.6, a "Change of Control" shall be
deemed to have occurred if:
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(i) Any Person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended)
who or that, together with all Affiliates and Associates (as
such terms are defined in Rule 12b-2, as in effect on April
23, 1997, of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended) of such Person,
is the Beneficial Owner (as defined below) of ten percent
(10%) or more of the shares of Common Stock (as defined below)
of the Company then outstanding, except:
(a) the Company;
(b) any Subsidiary of the Company;
(c) any employee benefit or stock ownership plan of the
Company or any trustee or fiduciary with respect to
such a plan acting in such capacity; or
(d) any such Person who has reported or may, pursuant to
Rule 13d-1(b)(1) of the General Rules and Regulations
under the Securities Exchange Act of 1934, as
amended, report such ownership (but only as long as
such Person is the Beneficial Owner of less than
fifteen percent (15%) of the shares of Common Stock
then outstanding) on Schedule 13G (or any comparable
or successor report) under the Securities Exchange
Act of 1934, as amended.
Notwithstanding the foregoing, (1) no Person shall become the
Beneficial Owner of ten percent (10%) or more (fifteen percent
(15%) or more in the case of any Person identified in clause
(d) above) solely as the result of an acquisition of Common
Stock by the Company that, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to ten percent (10%) or more
(fifteen percent (15%) or more in the case of any Person
identified in clause (d) above) of the shares of Common Stock
then outstanding; provided, however, that if a Person becomes
the Beneficial Owner of ten percent (10%) or more (fifteen
percent (15%) or more in the case of any Person identified in
clause (d) above) of the shares of Common Stock solely by
reason of purchases of Common Stock by the Company and shall,
after such purchases by the Company, become the Beneficial
Owner of any additional shares of Common Stock which has the
effect of increasing such Person's percentage ownership of the
then-outstanding shares of Common Stock by any means
whatsoever, then such Person shall be deemed to have triggered
a Change of Control, and (2) if the Board of Directors
determines that a Person who would otherwise be the Beneficial
Owner of ten percent (10%) or more (fifteen percent (15%) or
more in the case of any Person identified in clause (d) above)
of the shares of Common Stock has become such inadvertently
(including, without limitation, because (A) such Person was
unaware that it beneficially owned ten percent (10%) or more
(fifteen percent (15%) or more in the case of any Person
identified in clause (d) above) of the shares of Common Stock
or (B) such Person was aware of the extent of such beneficial
ownership but such person acquired beneficial ownership of
such shares of Common Stock without the intention to change or
influence the control of the Company) and such Person divests
itself as promptly as practicable of a sufficient number of
shares of Common Stock so that such Person would no longer be
the Beneficial Owner of ten percent (10%) or more (fifteen
percent (15%) or more in the case of any Person identified in
clause (d) above), then such Person shall not be deemed to be,
or have been, the Beneficial Owner of ten percent (10%) or
more (fifteen percent (15%) or more in the case of any Person
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identified clause (d) above) of the shares of Common Stock,
and no Change of Control shall be deemed to have occurred.
(ii) During any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of
Directors of the Company and any new director (other than a
director initially elected or nominated as a director as a
result of an actual or threatened election contest with
respect to directors or any other actual or threatened
solicitation of proxies by or on behalf of such director)
whose election by the Board of Directors or nomination for
election by the Company's shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof.
(iii) There shall be consummated any consolidation, merger or other
combination of the Company with any other Person or entity
other than:
(a) a consolidation, merger or other combination which
would result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by
being converted into voting securities of the
surviving entity) more than fifty-one percent (51%)
of the combined voting power of the voting securities
of the Company or such surviving entity outstanding
immediately after such consolidation, merger or other
combination; or
(b) a consolidation, merger or other combination effected
to implement a recapitalization and/or reorganization
of the Company (or similar transaction), or any other
consolidation, merger or other combination of the
Company, which results in no Person, together with
all Affiliates and Associates of such Person,
becoming the Beneficial Owner of ten percent (10%) or
more (fifteen percent (15%) or more in the case of
any Person identified in clause A(i)(d)) of the
combined voting power of the Company's then
outstanding securities.
(iv) There shall be consummated any sale, lease, assignment,
exchange, transfer or other disposition (in one transaction or
a series of related transactions) of fifty percent (50%) or
more of the assets or earning power of the Company (including,
without limitation, any such sale, lease, assignment,
exchange, transfer or other disposition effected to implement
a recapitalization and/or reorganization of the Company (or
similar transaction)) which results in any Person, together
with all Affiliates and Associates of such Person, owning a
proportionate share of such assets or earning power greater
than the proportionate share of the voting power of the
Company that such Person, together with all Affiliates and
Associates of such Person, owned immediately prior to any such
sale, lease, assignment, exchange, transfer or other
disposition.
(v) The shareholders of the Company approve a plan of complete
liquidation of the Company.
Notwithstanding any subparagraphs of this Section 6.6A above, with
respect to any of the events described in subparagraphs (i), (iii),
(iv) and (v), a Change of Control shall not be
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deemed to have occurred if any such event is approved by a vote of at
least two-thirds of the directors.
B. A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates is considered to be a "beneficial owner" under Rule
13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, as in effect on
April 23, 1997;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has or shares the right to
acquire, hold, vote (except pursuant to a revocable proxy as
described in the proviso to this Section 6.6B) or dispose of
such securities (whether any such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing), or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed to be the
Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange; or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate of such other
Person) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing), with respect to
acquiring, holding, voting (except as described in the proviso
to this Section 6.6B) or disposing of any securities of the
Company;
provided; however, that a Person shall not be deemed the Beneficial
Owner of, nor to beneficially own, any security if such Person has the
right to vote such security pursuant to an agreement, arrangement or
understanding which (a) arises solely from a revocable proxy given to
such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Securities Exchange Act of 1934, as amended, and
(b) is not also then reportable on Schedule 13D (or any comparable or
successor report) under the Securities Exchange Act of 1934, as
amended; and provided, further, that nothing in this Section 6.6B shall
cause a Person engaged in business as an underwriter of securities to
be the Beneficial Owner of, or to beneficially own, any securities
acquired through such Person's participation in good faith in a firm
commitment underwriting until the expiration of forty (40) days after
the date of such acquisition or such later date as the Board of
Directors may determine in any specific case.
C. "Common Stock" shall mean, unless specifically referenced otherwise,
the shares of common stock $1.00 par value, of the Company; provided,
however, that, if the Company is the continuing or surviving
corporation in a transaction described in subsections A (iii) or A(iv)
of this Section 6.6, "Common Stock" shall mean the capital stock with
the greatest aggregate voting power of the Company, or, if the Company
is a subsidiary of another corporation or business trust, the
corporation or business trust which ultimately controls the Company.
"Common Stock" when used with reference to any corporation or business
trust, other than the Company, shall mean the capital stock with the
greatest aggregate voting power of such corporation or business trust,
or, if such corporation or business trust is a subsidiary of
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another corporation or business trust, the corporation or business
trust which ultimately controls such first-mentioned corporation or
business trust.
SECTION 6.7. NOTICE. Until the Termination Date, the Company will cause its
treasurer, or in his absence another representative of the Company
designated by the treasurer, to promptly notify the Lenders and the
Administrative Agent whenever any Material Possible Default may occur
or any warranty made in Article IV hereof or elsewhere in this
Agreement or in any Related Writing may for any reason cease in any
Material respect to be true and complete.
SECTION 6.8. LIENS. The Company will not and will not permit any Consolidated
Subsidiary to create, assume or suffer to exist any lien upon any of
its property or assets (hereinafter "Properties") whether now owned or
hereafter acquired without effectively providing that any borrowings
under this Agreement shall be secured equally and ratably with all
other indebtedness thereby secured; provided that this Section shall
not apply to the following:
(i) liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings diligently
prosecuted,
(ii) other liens incidental to the conduct of its business or the
ownership of its Properties which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of its Properties or
materially impair the use thereof in the operation of its
business,
(iii) liens on Properties of a Consolidated Subsidiary to secure
obligations of such Consolidated Subsidiary to the Company or
another Consolidated Subsidiary,
(iv) liens on Properties of the Company and/or its Consolidated
Subsidiaries existing on the date hereof,
(v) any lien existing on any Properties of any corporation at the
time it becomes a Consolidated Subsidiary, existing prior to
the time of acquisition upon any Properties acquired by the
Company or any Consolidated Subsidiary through purchase,
merger, consolidation or otherwise, whether or not assumed by
the Company or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real property
(hereinafter in this subparagraph (vi) "Asset") at the time of
acquisition by the Company or any Consolidated Subsidiary to
secure all or a portion of or to secure indebtedness incurred
prior to, at the time of, or (in the case of any Asset
acquired with the intent to obtain subsequent financing
thereof secured by a lien) within one (1) year after the
acquisition of such Asset for the purpose of financing all or
a portion of the purchase price thereof, provided that any
such lien shall not encumber any other Properties of the
Company or such Consolidated Subsidiary,
(vii) any lien placed upon any real property now owned or hereafter
acquired by the Company or any of its Subsidiaries securing
indebtedness in an amount up to eighty percent (80%) of the
fair market value of such real property,
(viii) liens in favor of the United States of America or any
department or agency thereof, or in favor of any state
government or political subdivision thereof, or in favor of a
prime contractor under a government contract of the United
States, or of any state
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government or any political subdivision thereof, and, in each
case, resulting from acceptance of partial, progress, advance
or other payments in the ordinary course of business under
government contracts of the United States, or of any state
government or any political subdivision thereof, or
subcontracts thereunder,
(ix) liens created, assumed or existing in connection with a
tax-free financing,
(x) any lien renewing, extending or refunding any lien permitted
by clauses (iv), (v), (vi), (vii), (viii) and (ix) above,
provided that the principal amount secured is not materially
increased, and such lien is not extended to other Properties,
and
(xi) liens other than those permitted by clauses (i) through (x)
above, provided that the aggregate amount of all indebtedness
secured by liens permitted by this clause (xi) shall not at
any time exceed fifteen percent (15%) of Consolidated Net
Worth.
SECTION 6.9. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency
within the meaning of ERISA and the regulations thereunder, or any
Material liability to the Pension Benefit Guaranty Corporation or any
successor thereto in connection with any Plan. The Company will furnish
to the Lenders as soon as possible and in any event within thirty (30)
days after the Company or such Consolidated Subsidiary knows or has
reason to know that any Material Reportable Event with respect to any
Plan has occurred a statement of the chief financial officer of the
Company or such Consolidated Subsidiary setting forth details as to
such Reportable Event and the action which the Company or such
Consolidated Subsidiary proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event given to the Pension
Benefit Guaranty Corporation (or any successor thereto) if a copy of
such notice is available to the Company or such Consolidated
Subsidiary.
SECTION 6.10. NOTICE OF DEFAULT. The Company will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to each
Lender, the Administrative Agent and the Competitive Advance Facility
Agent of the occurrence of any Possible Default, Event of Default or
Change of Control and of any other development, financial or otherwise,
with respect to which there is a significant probability of a Material
adverse impact on Consolidated Net Worth or on the Company's ability to
repay the Notes.
SECTION 6.11. CONDUCT OF BUSINESS. The Company will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in
substantially the same manner as it is presently conducted and to do
all things necessary to remain duly incorporated, validly existing and
in good standing as a corporation in its jurisdiction of incorporation
and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
SECTION 6.12. TAXES. The Company will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or property, except
those which are being contested in good faith by appropriate
proceedings.
SECTION 6.13. COMPLIANCE WITH LAWS. The Company will use its best good faith
efforts to comply and to cause each Subsidiary to comply with all such
laws and regulations (other than laws and regulations the validity or
applicability of which are being contested by the Company or a
Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted) which may be legally imposed in the
future in jurisdictions in which the Company or any Subsidiary may then
be doing business.
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ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default":
SECTION 7.1. NON-PAYMENT OF NOTES, INTEREST, FACILITY FEE OR OTHER FEES. If the
principal on any Note shall not be paid in full when due and payable
and shall remain unpaid for a period of three (3) consecutive Banking
Days, or London Banking Days, as the case may be and/or any interest
due on any Note or any Facility Fee or Other Fee shall not be paid
within five (5) Banking Days after written notice thereof to the
Company from the Lender (or the Administrative Agent or Competitive
Advance Facility Agent, as the case may be) to whom such amount(s) are
owed.
SECTION 7.2. COVENANTS. If the Company shall fail or omit to perform and observe
any agreement or other provision (other than those referenced in
Section 7.1 hereof) contained or referred to in this Agreement or in
any Related Writing that is on the Company's part to be complied with,
and such failure or omission, is not fully corrected within thirty (30)
days after the giving of written notice thereof to the Company by no
less than fifty-one percent (51%) of the Lenders acting as a whole.
SECTION 7.3. WARRANTIES. If any representation, warranty or statement made in or
pursuant to this Agreement or any Related Writing or any other
information furnished by the Company to the Lenders or any other holder
of any Note, shall be false or erroneous in any respect which would
have or reasonably could have a Material adverse impact on the
financial condition of the Company and the Consolidated Subsidiaries,
taken as a whole.
SECTION 7.4. CROSS DEFAULT. If the Company or any of its Consolidated
Subsidiaries (i) defaults in the payment of principal or interest due
and owing upon any other Material obligation for borrowed money beyond
any period of grace provided with respect thereto or (ii) defaults in
the performance of any other agreement, term or condition contained in
any agreement under which such obligation is created, and any such
default is not waived by the holders of such agreement or instrument,
and if the effect of such unwaived default would (a) accelerate the
maturity of such indebtedness or permit the holder thereof to cause
such indebtedness to become due prior to its stated maturity and (b)
have or reasonably could have a Material adverse impact on the Company
and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If the Company
or a Consolidated Subsidiary representing in excess of ten percent
(10%) of total consolidated assets of the Company and the Consolidated
Subsidiaries shall (i) discontinue business (except as permitted under
Section 6.5 hereof), or (ii) generally not pay (or admit in writing its
inability to pay) its debts as such debts become due, or (iii) make a
general assignment for the benefit of creditors, or (iv) apply for or
consent to the appointment of a receiver, a custodian, a trustee, an
interim trustee or a liquidator of all or a substantial part of its
assets, or (v) be adjudicated an insolvent debtor or have entered
against it an order for relief under Title 11 of the United States
Code, as the same may be amended from to time to time, or (vi) file a
voluntary petition in bankruptcy or file a petition or an answer
seeking reorganization or an arrangement with creditors or seeking to
take advantage of any other law (whether federal or state) relating to
relief of debtors, or admit (by answer, by default or otherwise) the
substantive allegations of a petition filed against it in any
bankruptcy, reorganization, insolvency or other comparable proceeding
(whether federal or state) relating to relief of debtors, or (vii)
suffer or permit to continue unstayed and in effect for sixty (60)
consecutive days any judgment, decree or order entered by a court of
competent jurisdiction, which approves a petition seeking its
reorganization or appoints a receiver, custodian, trustee, interim
trustee or liquidator of all or a substantial part of its assets.
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ARTICLE VIII. EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
Section 7.5 hereof shall occur, the Commitments (if they have not
already been terminated) shall immediately terminate and all Notes
shall automatically become immediately due and payable, without notice.
If any other Event of Default shall occur and shall not have been
remedied within an allowable time period referred to in this Agreement,
then the Majority Lenders may terminate the Commitments (if they have
not already been terminated) and the Outstanding Majority Lenders may
declare that all Notes shall become immediately due and payable. The
Majority Lenders and the Outstanding Majority Lenders shall promptly
notify the Company in writing of any such declaration. The effect as an
Event of Default of any event described in Section 7.1 or 7.5 hereof
may be waived only by the written concurrence of the holders of one
hundred percent (100%) of the Commitments, or in the event there are no
Commitments, by one hundred percent (100%) of the holders of
outstanding Notes. The effect as an Event of Default of any other event
described in Sections 7.2, 7.3 or 7.4 may be waived by the holders of
fifty-one percent (51%) by amount of the Commitments.
ARTICLE IX. THE ADMINISTRATIVE AGENT AND COMPETITIVE ADVANCE
FACILITY AGENT
The Lenders hereby authorize (a) CBT and CBT hereby agrees to
act as Administrative Agent, and (b) The Chase Manhattan Bank and
Chase hereby agrees to act as the Competitive Advance Facility Agent,
for the Lenders in respect of this Agreement upon the terms and
conditions set forth elsewhere in this Agreement, and upon the
following terms and conditions:
SECTION 9.1. APPOINTMENT AND AUTHORIZATION. Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent and the Competitive
Advance Facility Agent to exercise such powers hereunder as are
delegated to the Administrative Agent and the Competitive Advance
Facility Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. Notwithstanding anything in this
Agreement to the contrary, or in a Related Writing, neither the
Administrative Agent nor the Competitive Advance Facility Agent shall
have any duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent or the Competitive Advance
Facility Agent have or be deemed to have any fiduciary relationship
with any Lender. Neither the Administrative Agent, the Competitive
Advance Facility Agent nor any of its or their directors, officers,
attorneys or employees shall be liable for any action taken or omitted
to be taken by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct.
SECTION 9.2. NOTE HOLDERS. The Administrative Agent and the Competitive Advance
Facility Agent, as the case may be, may treat the payee of any Note as
the holder thereof until written notice of transfer shall have been
filed with it signed by such payee and in form satisfactory to the
Administrative Agent or the Competitive Advance Facility Agent, as the
case may be.
SECTION 9.3. CONSULTATION WITH COUNSEL. Each of the Competitive Advance Facility
Agent and the Administrative Agent may consult with legal counsel
selected by it (including in-house counsel) and shall not be liable for
any reasonable action taken or suffered in good faith by it in
accordance with the written opinion of external counsel, issued before
such action is taken or suffered.
SECTION 9.4. DOCUMENTS. Neither the Competitive Advance Facility Agent nor the
Administrative Agent shall be under a duty to examine into or pass upon
the validity, effectiveness, genuineness or value of this Agreement,
the Notes, any Related Writing furnished pursuant hereto or in
connection herewith or the value of any collateral obtained hereunder,
and each of the
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Competitive Advance Facility Agent and the Administrative Agent shall
be entitled to assume that the same are valid, effective and genuine
and what they purport to be.
SECTION 9.5. ADMINISTRATIVE AGENT, COMPETITIVE ADVANCE FACILITY AGENT AND THEIR
AFFILIATES. With respect to the Loans made hereunder, each of the
Competitive Advance Facility Agent and the Administrative Agent shall
have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not the Administrative Agent or the
Competitive Advance Facility Agent, and the Administrative Agent and
the Competitive Advance Facility Agent and their affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Company or any Subsidiary or affiliate of the
Company.
SECTION 9.6. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed that
each of the Administrative Agent and the Competitive Advance Facility
Agent shall be entitled to assume that no Possible Default or Event of
Default has occurred and is continuing, unless the Administrative Agent
or the Competitive Advance Facility Agent, as the case may be, has
actual knowledge of such fact or has been notified by a Lender that
such Lender considers that a Possible Default or Event of Default has
occurred and is continuing and specifying the nature thereof.
SECTION 9.7. ACTION BY ADMINISTRATIVE AGENT, COMPETITIVE ADVANCE FACILITY AGENT.
So long as the Administrative Agent or the Competitive Advance Facility
Agent, as the case may be, shall be entitled, pursuant to Section 9.6
hereof, to assume that no Possible Default or Event of Default shall
have occurred and be continuing, each of the Competitive Advance
Facility Agent and the Administrative Agent shall be entitled to use
its discretion with respect to exercising or refraining from exercising
any rights which may be vested in it by, or with respect to taking or
refraining from taking any action or actions which it may be able to
take under or in respect of, this Agreement. Neither the Competitive
Advance Facility Agent nor the Administrative Agent shall incur any
liability under or in respect of this Agreement by action upon any
notice, certificate, warranty or other paper or instrument reasonably
believed by it to be genuine or authentic or to be signed by the proper
party or parties, or with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment, or which
the Administrative Agent or the Competitive Advance Facility Agent
reasonably believes to be necessary or desirable in the premises.
SECTION 9.8. INDEMNIFICATION. The Lenders agree to indemnify each of the
Competitive Advance Facility Agent and the Administrative Agent (to the
extent not reimbursed by the Company), ratably according to the
respective principal amounts of their Commitments from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, reasonable out of pocket costs and expenses
(including reasonable external counsel costs), expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against either the Competitive Advance Facility
Agent or the Administrative Agent in any action taken or omitted by the
Administrative Agent or the Competitive Advance Facility Agent with
respect to this Agreement, provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's or the Competitive Advance
Facility Agent's gross negligence or willful misconduct or from any
action taken or omitted by the Administrative Agent or the Competitive
Advance Facility Agent in any capacity other than as agent under this
Agreement.
SECTION 9.9. SUCCESSOR. The Company may select a successor or alternate
Administrative Agent and/or Competitive Advance Facility Agent with the
approval of the holders of fifty-one percent (51%) by amount of the
Commitments or Loans, as the case may be.
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ARTICLE X. MISCELLANEOUS
SECTION 10.1. LENDERS' INDEPENDENT INVESTIGATION. Each Lender, by its signature
to this Agreement, acknowledges and agrees that it has made and shall
continue to make its own independent investigation of the
creditworthiness, financial condition and affairs of the Company and
any Subsidiary in connection with the extension of credit hereunder,
and agrees that no other Lender, the Administrative Agent or the
Competitive Advance Facility Agent has any duty or responsibility,
either initially or on a continuing basis, to provide any Lender with
any credit or other information with respect thereto whether coming
into its possession before the making of the first Loans or at any time
or times thereafter.
SECTION 10.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of dealing
on the part of any Lender or the holder of any Note in exercising any
right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein provided
are cumulative and in addition to any other rights, powers or
privileges held by operation of law, by contract or otherwise.
SECTION 10.3. AMENDMENTS. Except as otherwise specifically provided herein, no
amendment, modification, termination, or waiver of any provision of
this Agreement or of the Notes (except in the event of a Money Market
Note and/or Competitive Note), nor consent to any variance therefrom,
shall be effective unless the same shall be in writing and signed by
the Company and the Majority Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given.
The unanimous consent of the Lenders, shall be required with
respect to (i) the change of maturity of the Notes under Section 2.1A
hereto, or the payment date of interest on Notes pursuant to Section
2.1A, (ii) any change in the rate of interest on such Notes, or in the
rate at which the Facility Fee referred to in Section 2.3 hereof shall
be calculated or in any amount of principal or interest due on any such
Note, or in the manner of pro-rata application of any payments made by
the Company to the Lenders hereunder, (iii) any change in any
percentage voting requirement in this Agreement, (iv) any change in any
date specified in this Agreement for the payment of principal or
interest on any Note under Section 2.1A hereto or for the payment of
any Facility Fee hereunder, (v) any increase in any Lender's Commitment
or Percentage, except pursuant to Section 2.5(iii) hereof, or any
increase in the aggregate of all of the Lenders' Commitments hereunder
or (vi) any change to this Section 10.3. No amendments to the duties or
responsibilities of the Administrative Agent or Competitive Advance
Facility Agent may be made without the prior written consent of the
Administrative Agent or the Competitive Advance Facility Agent, as the
case may be, except as provided in Section 9.9 hereof.
Notice of amendments or consents ratified by the Lenders
hereunder shall immediately be forwarded by the Company to all Lenders.
Each Lender or other holder of a Note shall be bound by any amendment,
waiver or consent obtained as authorized by this Section, regardless of
its failure to agree thereto.
SECTION 10.4. CONFIDENTIALITY. Unless the Company otherwise agrees in writing,
each Lender hereby agrees to keep all Proprietary Information (as
defined below) confidential and not to disclose or reveal any
Proprietary Information to any person or entity other than such
Lender's directors, officers, employees, affiliates, and agents, and
then only on a confidential need-to-know basis; provided, however that
a Lender may disclose Proprietary Information (a) as required by law,
rule, regulation, or judicial process, (b) to its attorneys and
accountants, (c) as requested or required by a state, federal, or
foreign authority or examiner regulating banks or banking, or (d) to
actual or
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potential assignees or participants as permitted by Section 10.9 hereof
who agree to be bound by the provisions of this Section. For purposes
of this Agreement, the term "Proprietary Information" shall include all
information about the Company, any Subsidiary, or any of their
respective affiliates which has been furnished by the Company, any
Subsidiary, or any of their respective affiliates, whether furnished
before or after the date hereof, and regardless of the manner
furnished; provided, however, that Proprietary Information shall not
include information which (x) is or becomes generally available to the
public other than as a result of a disclosure by a Lender not permitted
by this Agreement, (y) was available to a Lender on a nonconfidential
basis prior to its disclosure to such Lender by the Company, any
Subsidiary, or any of their respective affiliates, or (z) becomes
available to a Lender on a nonconfidential basis from a person and/or
entity other than the Company, any Subsidiary, or any of their
respective affiliates who, to the best knowledge of such Lender, is not
otherwise bound by a confidentiality agreement with the Company, any
Subsidiary, or any of their respective affiliates, or, to the best
knowledge of such Lender, is not otherwise prohibited from transmitting
the information to such Lender.
SECTION 10.5. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to the Company or a
Subsidiary, mailed or delivered to it, addressed to it at the address
of the Company herein or hereinafter specified, and if to a Lender,
mailed or delivered to it, addressed to the address (as may be amended
from time to time) of such Lender specified on its signature page to
this Agreement. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or
made when received.
SECTION 10.6. COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses (including reasonable legal
fees for outside counsel) of the Lenders incurred directly as a result
of the enforcement of this Agreement, the Notes and the other
instruments and documents in connection herewith.
SECTION 10.7. OBLIGATIONS SEVERAL. The obligations of the Lenders hereunder are
several and not joint. Nothing contained in this Agreement and no
action taken by the Lenders pursuant hereto shall be deemed to
constitute the Lenders as a partnership, association, joint venture or
other entity. No default by any Lender hereunder shall excuse the other
Lenders from any obligation under this Agreement; but no Lender shall
have or acquire any additional obligation of any kind by reason of such
default.
SECTION 10.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and when taken together shall constitute one
and the same agreement.
SECTION 10.9. ASSIGNMENTS AND PARTICIPATIONS.
A. ASSIGNMENTS. Unless the Company otherwise consents in writing,
which consent shall not be unreasonably withheld, no payee or
other party in possession of any Note (including any Lender)
shall assign or transfer any Note or any interest therein to
any other person or entity, except as otherwise permitted
under this Section, or negotiate any Note, as such term is
defined in Ohio Revised Code Chapter 1303; provided, however,
no consent from the Company shall be required in the event a
Lender makes any such assignment to an affiliate of such
Lender or to another Lender. Except as otherwise expressly
agreed in writing by the Company, no Lender shall, by reason
of the assignment or transfer of any Note or otherwise, be
relieved of any of its obligations hereunder. Each transferee
of any Note shall take such Note subject to the provisions of
this Agreement and to any request made, waiver or consent
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given, or other action taken hereunder, prior to such
transfer, by each previous holder of such Note; and the
Company shall be entitled to conclusively assume that the
transferee shall thereafter be vested with all rights and
powers under this Agreement of the Lender named as the payee
of the Note which is the subject of such transfer. Nothing
herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank of the United States
pursuant to applicable law. No party in possession of a Note
shall be a "Holder" as such term is defined in Ohio Revised
Code Chapter 1303. Notwithstanding any provision of this
Section 10.9 to the contrary, the Company may not assign or
transfer any of its rights or obligations hereunder without
the consent of the holders of one hundred percent (100%) by
amount of the Commitments or Loans, as the case may be.
B. PARTICIPATIONS. Any Lender may grant participations in or to
all or any part of any Loan or Loans held by such Lender and
Commitment of such Lender and the Notes held by such Lender
without the consent of the Company. Except as otherwise
expressly agreed in writing by the Company, no grant of a
participation shall relieve any Lender of its obligations
hereunder. The Company shall be entitled to deal solely with
the Lenders (and their respective assignees) for all purposes
of this Agreement and the Notes, and no holder of a
participation in all or any part of the Loans, Notes or
Commitments shall have any rights under this Agreement and
shall not be a Holder of any Note, as such term is defined in
Ohio Revised Code Chapter 1303.
C. DISCLOSURE OF INFORMATION. The Company hereby consents to the
disclosure of any information obtained in connection herewith
by any Lender to any entity which is an assignee or potential
assignee or a participant or potential participant pursuant to
Section 10.9A or 10.9B hereof, it being understood that such
Lender shall advise any such actual or potential assignee or
participant of its obligation to keep confidential any
nonpublic information disclosed to it pursuant to this Section
10.9 and, prior to the disclosure of such information, shall
cause each such actual or potential assignee or participant to
execute a confidentiality agreement containing the
confidentiality provisions set forth in Section 10.4 hereof.
D. SECURITIES LAWS. Each Lender represents that it is the present
intention of such Lender to acquire each Note drawn to its
order for its own account and not with a view to the
distribution or sale thereof.
SECTION 10.10. TAX FORMS. With respect to each Lender which is organized under
the laws of a jurisdiction outside the United States (which claims,
exemption from, or reduction of, United States withholding tax under
Sections 1441 or 1442 of the Internal Revenue Code of 1986, as
amended), on the date of any borrowing, and from time to time
thereafter if requested by the Company or the Administrative Agent,
each such Lender shall provide the Administrative Agent and the Company
with the forms prescribed by the Internal Revenue Service of the United
States certifying as to such Lender's status for purposes of
determining exemption from United States withholding taxes with respect
to all payments to be made to such Lender hereunder or other documents
satisfactory to the Company and the Administrative Agent indicating
that all payments to be made to such Lender hereunder are subject to
such tax at a rate reduced by an applicable tax treaty. Unless the
Company and the Administrative Agent have received such forms and such
other documents reasonably requested by the Administrative Agent or the
Company indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty, the Company or the Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in
the case of payments to or for any Lender organized under the laws of a
jurisdiction outside the United States.
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SECTION 10.11. ENTIRE AGREEMENT. This Agreement supersedes any prior agreement
or understanding of the parties hereto, and contains the entire
agreement of the parties hereto, with respect to the matters covered
hereby; provided that the indemnification and expense reimbursement
provisions of the Commitment Letter dated November 12, 1996 by and
among the Company, TCB, Chase and Chase Securities, Inc. and the
provisions relating to the administration fees and the auction
administration fees in the Fee Letter referred to therein shall
continue in effect notwithstanding the execution and delivery of this
Agreement.
SECTION 10.12. GOVERNING LAW. This Agreement, each of the Notes and any Related
Writing shall be governed by and construed in accordance with the laws
of the State of Ohio and the respective rights and obligations of the
Company and the Lenders shall be governed by Ohio law.
SECTION 10.13. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. The several captions to sections
and subsections herein are inserted for convenience only and shall be
ignored in interpreting the provisions of this Agreement.
SECTION 10.14. PRESS RELEASES. Neither the Administrative Agent nor the
Competitive Advance Facility Agent or any Lender shall issue any press
release regarding this Agreement without the prior written consent of
the Company.
SECTION 10.15. CONSENT TO JURISDICTION. The Company hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Competitive Advance
Facility Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Company or its
properties in the courts of any jurisdiction.
The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in
any court referred to in this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.5. Nothing
in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date indicated above.
THE XXXXXXX-XXXXXXXX COMPANY
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By: /s/
--------------------------------------
XXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT-
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/
--------------------------------------
XXXXXXX X. XXXXXX
Title: VICE PRESIDENT AND ASSISTANT
TREASURER
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Amount of Percentage of
Commitment Commitments ABN AMRO Bank N.V.
---------- -----------
$10,000,000 7.44% by: ABN AMRO North America, Inc.
as agent
By: /s/
-----------------------------
Name:
Title:
ABN AMRO Bank N.V.
by: ABN AMRO North America, Inc.
as agent
Xxx XXX Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX x0000-0000
Telephone:
-----------------------
Facsimile:
-----------------------
38
Amount of Percentage of
Commitment Commitments BankBoston, N.A.
---------- -----------
$4,800,000 3.57%
By: /s/
------------------------------
Name:
Title:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx, 00-00-00
Xxxxxx, XX 00000
Telephone:
-----------------------
Facsimile:
-----------------------
39
Amount of Percentage of
Commitment Commitments National City Bank
---------- -----------
$10,000,000 7.44%
By: /s/
------------------------------
Name:
Title:
National City Bank
0000 Xxxx Xxxxx Xxxxxx (LOC 2077)
Xxxxxxxxx, Xxxx 00000
Telephone:
-----------------------
Facsimile:
-----------------------
40
Amount of Percentage of
Commitment Commitments Xxxxx Fargo Bank, N.A.
---------- -----------
$10,000,000 7.44%
By: /s/
------------------------------
Name:
Title:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxxxxxxx - MAC
2818-165
Xxx Xxxxxxx, XX 00000
Telephone:
----------------------
Facsimile:
----------------------
41
Amount of Percentage of
Commitment Commitments Wachovia Bank of Georgia, N.A.
---------- -----------
$7,600,000 5.65%
By: /s/
-----------------------------
Name:
Title:
Wachovia Bank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone:
----------------------
Facsimile:
----------------------
42
Amount of Percentage of
Commitment Commitments SunTrust Bank, Atlanta
---------- -----------
$10,000,000 7.44%
By: /s/
-----------------------------
Name:
Title:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telephone:
----------------------
Facsimile:
----------------------
43
Amount of Percentage of
Commitment Commitments Banca Commerciale Italiana
---------- ----------- Chicago Branch
$4,800,000 3.57%
By: /s/
-----------------------------
Name:
Title:
Banca Commerciale Italiana
Chicago Branch
000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxx. 00000
Telephone:
----------------------
Facsimile:
----------------------
44
Amount of Percentage of
Commitment Commitments The Bank of New York
---------- -----------
$10,000,000 7.44%
By: /s/
----------------------------
Name:
Title:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone:
---------------------
Facsimile:
---------------------
45
Amount of Percentage of
Commitment Commitments Bank One, NA (Illinois)
---------- -----------
$10,000,000 7.44%
By: /s/
----------------------------
Name:
Title:
Bank One, NA (Illinois)
000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx
0000
Xxxxxxx, XX 00000
Telephone:
---------------------
Facsimile:
---------------------
46
Amount of Percentage of
Commitment Commitments The Bank of Nova Scotia
---------- ----------- Atlanta Agency
$4,800,000 3.57%
By: /s/
--------------------------
Name:
Title:
The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone:
----------------------
Facsimile:
----------------------
47
Amount of Percentage of
Commitment Commitments Bank of America, N.A.
---------- -----------
$10,000,000 7.44%
By: /s/
-----------------------------
Name:
Title:
Bank of America, N.A.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone:
-----------------------
Facsimile:
-----------------------
48
Amount of Percentage of
Commitment Commitments KeyBank National Association
---------- -----------
$10,000,000 7.44%
By: /s/
-----------------------------
Name:
Title:
KeyBank National Association
127 Public Square/Mail Code:OH
01-27-0606
Xxxxxxxxx, Xxxx 00000-0000
Telephone:
-----------------------
Facsimile:
-----------------------
49
Amount of Percentage of
Commitment Commitments First Union National Bank of
---------- ----------- North Carolina
$10,000,000 7.44%
By: /s/
------------------------------
Name:
Title:
First Union National Bank of
North Carolina
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000-0000
Telephone:
-----------------------
Facsimile:
-----------------------
50
Amount of Percentage of
Commitment Commitments Mellon Bank, N.A.
---------- -----------
$7,600,000 5.65%
By: /s/
-----------------------------
Name:
Title:
Mellon Bank, N.A.
Xxx Xxxxxx Xxxx Xxxxxx, Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Telephone:
----------------------
Facsimile:
----------------------
51
Amount of Percentage of
Commitment Commitments
$10,000,000 7.44% Chase Bank of Texas, National
Association
By: /s/
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Name:
Title:
Chase Bank of Texas, National
Association
000 Xxxx Xxxxxx (0XXXX00)
Xxxxxxx, XX 00000-0000
Telephone:
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Facsimile:
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52
Amount of Percentage of
Commitment Commitments
$4,800,000 3.57% Fifth Third Bank
By: /s/
-----------------------------
Name:
Title:
Fifth Third Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone:
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Facsimile:
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53
The Chase Manhattan Bank,
as the Competitive Advance
Facility Agent
By: /s/
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Name:
Title:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone:
---------------------
Facsimile:
---------------------
54
Schedule A
ABN AMRO Bank N.V. Bank One, NA (Illinois)
One PPG Place, Suite 2950 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
Banca Commerciale Italiana First Union National Bank of North Carolina
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
BankBoston, N.A. KeyBank National Association
000 Xxxxxxx Xxxxxx, 01-09-05 000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000 Mail Code: OH-01-27-0606
Xxxxxxxxx, XX 00000-0000
Bank of America, N.A.
335 Madison Avenue Mellon Bank, N.A.
5th Floor One Mellon Bank Center, Rm. 4320
Xxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
The Bank of New York National City Bank
One Wall Street 0000 Xxxx Xxxxx Xxxxxx (LOC 2077)
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
The Bank of Nova Scotia SunTrust Bank, Atlanta
Atlanta Agency 00 Xxxx Xxxxx, 00xx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X. Xxxxxxx XX 00000
Xxxxx 0000
Xxxxxxx, XX 00000 Wachovia Bank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Chase Bank of Texas, National Association Xxxxxxx, XX 00000
000 Xxxx Xxxxxx (0XXXX00)
Xxxxxxx, XX 00000-0000 Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxxxxxxx - MAC 0000-000
Xxxxx Xxxxx Xxxx Xxx Xxxxxxx, XX 00000
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
55
Schedule B
NON-NEGOTIABLE REVOLVING CREDIT NOTE
$________________________ Cleveland, Ohio
Due Date: _______________, 19__
FOR VALUE RECEIVED, the undersigned, THE XXXXXXX-XXXXXXXX COMPANY
("Borrower") promises to pay to the order of _____________________________
("Lender"), the principal sum of _______________________________ Dollars
($__________) or the aggregate unpaid principal amount of all Loans evidenced by
this Note made by Lender to Borrower pursuant to Paragraph A of Section 2.1 of
the Amended and Restated 364-Day Revolving Credit Agreement, whichever is less,
in legal tender of the United States of America on the Due Date indicated above
pursuant to that certain Amended and Restated 364-Day Revolving Credit Agreement
(as may be amended from time to time, "Credit Agreement") dated December 31,
1999 by and among Borrower, Chase Bank of Texas, National Association, as
Administrative Agent, The Chase Manhattan Bank and the Lenders identified on the
signature pages to such Agreement. Capitalized terms used, but not otherwise
defined herein, shall have the meanings ascribed to them in said Credit
Agreement.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rates per annum which shall be determined in accordance with the
provisions of Paragraph A of Section 2.1 of the Credit Agreement. Said interest
shall be payable on each date provided for in Paragraph A of said Section 2.1;
provided, however, that interest on any principal portion which is not paid when
due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Alternate Base Rate Loans and LIBOR Loans, and payments of principal of any
thereof, will be recorded on the grid(s) attached hereto and made a part hereof
or by appropriate book entry. All Revolving Credit Loans to Borrower pursuant to
the Credit Agreement and all payments on account of principal hereof shall be
recorded by Lender prior to transfer hereof on such grid(s) or by appropriate
book entries, it being understood, however, that Lender's failure to record
appropriate information in the grid(s) attached to this Note shall in no way
affect the obligation of Borrower under the Credit Agreement or this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement , or any Event of
Default under the Credit Agreement the principal hereof and the unpaid interest
thereon shall bear interest, until paid, at a rate per annum which shall be 1.1
times the Alternate Base Rate. All payments of principal of and interest on this
Note shall be made in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement. Reference is made to such Credit Agreement for a description
of other terms and conditions upon which this Note is issued.
THE XXXXXXX-XXXXXXXX COMPANY
("Borrower")
By:____________________________________
Title:_________________________________
56
REVOLVING CREDIT NOTE
LOANS AND PRINCIPAL PAYMENTS
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Amount of Alternate Amount of Amount of Unpaid Principal Balance Name of Person
Date Base Rate Loan LIBOR Loan Principal Prepaid of Revolving Credit Note Making Notification
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57
Schedule C
NON-NEGOTIABLE MONEY MARKET NOTE
$________________________ Cleveland, Ohio
______________________, 19__
Due Date:
___________________
FOR VALUE RECEIVED, the undersigned, THE XXXXXXX-XXXXXXXX
COMPANY ("Borrower") promises to pay to the order of ___________________
("Lender") , the principal sum of __________________________ Dollars
($__________) pursuant to Paragraph B of Section 2.1 of the Amended and Restated
364-Day Revolving Credit Agreement, in legal tender of the United States of
America on the Due Date indicated above pursuant to that certain Amended and
Restated 364-Day Revolving Credit Agreement (as may be amended from time to
time, "Credit Agreement") dated December 31, 1999 by and among Borrower, Chase
Bank of Texas, National Association, as Administrative Agent, The Chase
Manhattan Bank and the Lenders identified on the signature pages to such
Agreement in lawful money of the United States of America. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to them
in the credit agreement referred to herein.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rate of __________ percent (____%) per annum. Said interest shall
be payable on each date provided for in Paragraph B of Section 2.1 of the Credit
Agreement; provided, however, that interest on any principal portion which is
not paid when due shall be payable on demand.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the credit agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be 1.1 times the Alternate Base Rate from time to time in
effect. All payments of principal of and interest on this Note shall be made in
immediately available funds.
This Note is one of the Money Market Notes referred to in the Credit
Agreement Reference is made to such Credit Agreement for a description of other
terms and conditions upon which this Note is issued.
THE XXXXXXX-XXXXXXXX COMPANY
("Borrower")
By: ___________________________
58
MONEY MARKET NOTE
LOANS AND PRINCIPAL PAYMENTS
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============================================================================================================
Amount of Loan Amount of Principal Unpaid Principal Name of Person Making
Prepaid Balance Notation
Date of Money Market Loan
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59
Schedule D
NON-NEGOTIABLE COMPETITIVE BID NOTE
$___________________ Cleveland, Ohio
Due Date: _______________, 19__
FOR VALUE RECEIVED, the undersigned, THE XXXXXXX-XXXXXXXX COMPANY
("Borrower") promises to pay on the last day of the relevant interest period as
referred to in that certain Amended and Restated 364-Day Revolving Credit
Agreement (as may be amended from time to time, "Credit Agreement") dated
December 31, 1999 by and among Borrower, Chase Bank of Texas, National
Association, The Chase Manhattan Bank and the Lenders identified on the
signature pages to such Agreement, to the order of _____________________________
("Lender"), the principal sum of _______________________________ Dollars
($__________) or the aggregate unpaid principal amount of all Loans evidenced by
this note made by Lender to Borrower pursuant to Paragraph D of Section 2.1 of
the Credit Agreement, whichever is less, in legal tender of the United States of
America pursuant to the Credit Agreement. Capitalized terms used, but not
otherwise defined herein, shall have the meanings ascribed to them in said
Credit Agreement.
Borrower promises to pay interest on the unpaid principal amount from
time to time outstanding from the date of such Loan until the payment in full
thereof at the rates per annum which shall be determined in accordance with the
provisions of Paragraph C of Section 2.1 of the Credit Agreement. Said interest
shall be payable as provided in the Competitive Bid accepted by the Company
provided, however, that interest on any principal portion which is not paid when
due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Fixed Rate Loans and Competitive Libor Loans, and payments of principal of any
thereof, will be recorded on the grid(s) attached hereto and made a part hereof
or by appropriate book entry. All Competitive Loans to Borrower pursuant to the
Credit Agreement and all payments on account of principal hereof shall be
recorded by Lender prior to transfer hereof on such grid(s) or by appropriate
book entries, it being understood, however, that Lender's failure to record
appropriate information in the grid(s) attached to this Note shall in no way
affect the obligation of Borrower under the Credit Agreement or this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement hereinafter referred
to, or in any Event of Default under the Credit Agreement the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be _________________
This Note is one of the Competitive Notes referred to in the Credit
Agreement. Reference is made to such Credit Agreement for a description of other
terms and conditions upon which this Note is issued.
THE XXXXXXX-XXXXXXXX COMPANY
("Borrower")
By:____________________________________
Title:_________________________________
60
COMPETITIVE NOTE
LOANS AND PRINCIPAL PAYMENTS
=================================================================================================================================
Amount of Fixed Amount of Amount of Unpaid Principal Balance Name of Person
Rate Loan Competitive Principal Prepaid (if of Competitive Note Making Notification
Date Libor Loan consent obtained)
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61
LOANS AND PRINCIPAL PAYMENTS
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Amount of Loan Amount of Principal Unpaid Principal Name of Person Making
Prepaid Balance Notation
Date of Money Market Loan
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