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Exhibit 10(f)
08/14/98
#8127537.06
$45,000,000
CREDIT AGREEMENT
dated as of
August 14, 1998
by and among
The Xxxxxx Corporation,
as Borrower,
Xxxxxx Construction Company,
as Guarantor,
The Banks Party Hereto,
and
Bank One, N.A.,
as Agent
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TABLE OF CONTENTS
Page
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ARTICLE 1: DEFINITIONS.......................................................1
1.1. Definitions...........................................................1
1.2. Accounting Terms and Determinations...................................7
ARTICLE 2: THE CREDITS.......................................................7
2.1. Commitments to Lend...................................................8
2.2. Method of Borrowing...................................................8
2.3. Notes.................................................................9
2.4. Maturity of Loans.....................................................9
2.5. Interest Rates........................................................9
2.6. Fees.................................................................11
2.7. Optional Termination or Reduction of Commitments.....................11
2.8. Method of Electing Interest Rates....................................11
2.9. Mandatory Termination of Commitments.................................12
2.10. Optional Prepayments.................................................12
2.11. General Provisions as to Payments....................................12
2.12. Funding Losses.......................................................13
2.13. Computation of Interest and Fees.....................................13
2.14. Letters of Credit....................................................13
ARTICLE 3: CONDITIONS.......................................................15
3.1. Effective Date.......................................................15
3.2. Borrowings and Issuances of Letters of Credit........................16
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF THE BORROWER...................16
4.1. Corporate Existence and Power........................................16
4.2. Corporate and Governmental Authorization; No Contravention...........16
4.3. Binding Effect.......................................................16
4.4. Financial Information................................................16
4.5. Litigation...........................................................17
4.6. Compliance with ERISA................................................17
4.7. Environmental Matters................................................17
4.8. Compliance with Laws.................................................17
4.9. Contractual Arrangements.............................................17
4.10. Taxes................................................................17
4.11. Subsidiaries.........................................................17
4.12. Not an Investment Company............................................18
4.13. Full Disclosure......................................................18
ARTICLE 5: COVENANTS........................................................18
5.1. Information..........................................................18
5.2. Payment of Obligations...............................................20
5.3. Maintenance of Property; Insurance...................................20
5.4. Conduct of Business and Maintenance of Existence.....................20
5.5. Compliance with Laws.................................................21
5.6. Inspection of Property, Books and Records............................21
5.7. Current Ratio........................................................21
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5.8. Debt.................................................................21
5.9. Minimum Consolidated Adjusted Net Worth..............................21
5.10. Fixed Charge Coverage................................................22
5.11. Intentionally Deleted................................................22
5.12. Debt of Guarantor....................................................22
5.13. Investments..........................................................22
5.14. Negative Pledge......................................................23
5.15. Consolidations, Mergers and Sales of Assets..........................23
5.16. Use of Proceeds......................................................23
5.17. Real Estate Development..............................................24
ARTICLE 6: DEFAULTS.........................................................24
6.1. Events of Default....................................................24
6.2. Notice of Default....................................................25
6.3. Cash Cover...........................................................25
ARTICLE 7: THE AGENT........................................................26
7.1. Appointment and Authorization........................................26
7.2. Agent and Affiliates.................................................26
7.3. Action by Agent......................................................26
7.4. Consultation with Experts............................................26
7.5. Liability of Agent...................................................26
7.6. Indemnification......................................................26
7.7. Credit Decision......................................................26
7.8. Successor Agent......................................................27
7.9. Agent's Fee..........................................................27
ARTICLE 8: CHANGE IN CIRCUMSTANCES..........................................27
8.1. Basis for Determining Interest Rate Inadequate or Unfair.............27
8.2. Illegality...........................................................27
8.3. Increased Cost and Reduced Return....................................28
8.4. Taxes................................................................28
8.5. Base Rate Loans Substituted for Affected Eurodollar Loans............29
ARTICLE 9: GUARANTY.........................................................30
9.1. The Guaranty.........................................................30
9.2. Guaranty Unconditional...............................................30
9.3. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances..............................................30
9.4. Waiver by the Guarantor..............................................31
9.5. Subornation..........................................................31
9.6. Stay of Acceleration.................................................31
9.7. Limit of Liability...................................................31
ARTICLE 10: MISCELLANEOUS...................................................31
10.1. Notices.............................................................31
10.2. No Waivers..........................................................31
10.3. Expenses; Indemnification...........................................32
10.4. Sharing of Set-Offs.................................................32
10.5. Amendments and Waivers..............................................32
10.6. Successors and Assigns..............................................33
10.7. Collateral..........................................................34
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10.8. Governing Law.......................................................34
10.9. Counterparts; Integration...........................................34
10.10. WAIVER OF JURY TRIAL................................................34
Pricing Schedule
Exhibit A Note
Exhibit B Opinion of Counsel for the Borrower and the Guarantor
Exhibit C Opinion of General Counsel of the Borrower and the
Guarantor
Exhibit D Assignment and Assumption Agreement
Exhibit E Extension Agreement
Schedule A Subsidiaries of the Borrower
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CREDIT AGREEMENT dated as of August 14, 1998 by and among THE XXXXXX
CORPORATION, as Borrower, XXXXXX CONSTRUCTION COMPANY, as Guarantor, the BANKS
party hereto and BANK ONE, N.A., as Agent.
W I T N E S S E T H :
ARTICLE 1: DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.5(b).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"Agent" means Bank One, N.A. in its capacity as agent for the Banks
hereunder, and its successor(s), if any, in such capacity.
"Agreement" means this Agreement as in effect from time to time and
as further amended from time to time hereafter.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the
case of its Eurodollar Loans, its Eurodollar Lending Office.
"Assets Attributable to Minority Interests" at any date means, with
respect to any asset that (i) would be reflected on the consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries if such balance sheet
were prepared as of such date, and (ii) is owned by a Consolidated Subsidiary
that is not wholly owned by the Borrower, a percentage of the amount of such
asset that would be reflected on such balance sheet that is equal to the
percentage of the equity of such Consolidated Subsidiary that would be reflected
as a minority interest on such balance sheet.
"Assignee" has the meaning set forth in Section 10.6(c).
"Backlog Earnings", with respect to any construction project on any
date, means that portion of the Backlog Volume with respect to such construction
project as of such date that is attributable to earnings expected to be realized
after such date from a contract theretofore obtained but not yet completed with
respect to such construction project.
"Backlog Volume", with respect to any construction project on any
date, means construction costs expected to be incurred in respect of, and
earnings expected to be realized from, a contract theretofore obtained but not
yet completed with respect to such construction project, in each case as of such
date.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.6(c), and their respective
successors and assigns, and shall include, as the context may require, Bank One,
N.A. in its capacity as Issuing Bank.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day, and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Article 8, or (ii) an overdue amount which was a
Base Rate Loan immediately before it became overdue.
"Base Rate Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means The Xxxxxx Corporation, a Delaware corporation, and
its successors.
"Borrower's 1997 Form 10-K" means the Borrower's annual report on
Form 10-K for 1997, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Borrowing" means a borrowing hereunder consisting of Loans made to
the Borrower on the same day pursuant to Article 2, all of which Loans are of
the same type (subject to Article 8) and have the same initial Interest Period.
A Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Eurodollar Borrowing" if such Loans are Eurodollar Loans.
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"Commitment" means (i) with respect to any Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank as
its Commitment on such signature pages, or (ii) with respect to any Assignee,
the amount of the transferor Bank's Commitment assigned to such Assignee
pursuant to Section 10.6(c), in each case as such amount may be reduced from
time to time pursuant to Section 2.7 or changed as a result of an assignment
pursuant to Section 10.6(c).
"Consolidated Adjusted Current Assets" means at any date the
consolidated current assets of the Borrower and its Consolidated Subsidiaries
determined as of such date on the assumption that all real estate of the
Borrower and its Consolidated Subsidiaries which on such date is held for sale
is a current asset.
"Consolidated Adjusted Current Liabilities" means at any date the
sum of (i) the consolidated current liabilities of the Borrower and its
Consolidated Subsidiaries, plus (ii) the current liabilities of any Person
(other than the Borrower or a Consolidated Subsidiary) which are Guaranteed by
the Borrower or a Consolidated Subsidiary, all determined as of such date on the
assumption that consolidated current liabilities includes all obligations of the
Borrower or a Consolidated Subsidiary of which the Borrower reasonably expects
the obligor would be relieved (by discharge, assumption by a third party or
otherwise) upon sale of real estate which on such date is held for sale;
provided that consolidated current liabilities of the Borrower and its
Consolidated Subsidiaries shall not include any payments of principal of the
Loans.
"Consolidated Adjusted Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries,
determined as of such date.
"Consolidated Adjusted Total Assets" means at any date the total
consolidated assets of the Borrower and its Consolidated Subsidiaries,
determined as of such date, after deducting therefrom (i) Assets Attributable to
Minority Interests, and (ii) treasury stock, goodwill, trademarks, trade names,
patents and deferred charges, unamortized debt discount and all other intangible
assets of the Borrower and its Consolidated Subsidiaries.
"Consolidated Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.14 and the definitions of Material
Debt and Material Financial Obligations, all Contingent obligations) of such
Person to reimburse or prepay any bank or other Person in respect of amounts
paid or payable under a letter of credit or similar instrument, (vi) all Debt
secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, and (vii) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which, with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations (after
giving effect to any applicable netting provisions) of such Person in respect of
any rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of the foregoing
transactions), or any combination of the foregoing transactions.
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"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Columbus, Ohio are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office), or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent.
"Effective Date" means the date on which the Agent shall have
received all the documents and payments specified in or pursuant to Section 3.1.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Eurodollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Eurodollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Eurodollar Lending Office), or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Eurodollar Lending Office by notice to
the Borrower and the Agent.
"Eurodollar Loan" means (i) a Loan which bears interest at a
Eurodollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election, or (ii) an overdue amount which was a Eurodollar Loan
immediately before it became overdue.
"Eurodollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Eurodollar Rate" means a rate of interest determined pursuant to
Section 2.5(c) on the basis of an Adjusted London Interbank Offered Rate.
"Eurodollar Reserve Percentage" has the meaning set forth in
Section 2.5(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Extension Date" has the meaning set forth in Section 2.1(b).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Bank One, N.A. on such day on such
transactions as determined by the Agent.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Fixed Charge Ratio" for any period means Income Available for
Fixed Charges for such period divided by Fixed Charges for such period.
"Fixed Charges" for any period means (i) interest expense (including
interest expense under capital leases) and rental expense under operating
leases, to the extent deducted in determining the consolidated net income of the
Borrower and its Consolidated Subsidiaries for such period, and (ii) dividends
on preferred stock of the Borrower and its Consolidated Subsidiaries for such
period.
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"Group of Loans" means at any time a group of Loans consisting of
(i) all Base Rate Loans having the same Interest Period at such time, or (ii)
all Eurodollar Loans having the same Interest Period at such time; provided
that, if a Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise), or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means Xxxxxx Construction Company, a New York
corporation, and its successors.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Income Available for Fixed Charges" for any period means the
consolidated net income of the Borrower and its Consolidated Subsidiaries for
such period, plus (to the extent deducted in determining such consolidated net
income), without duplication (i) income taxes, (ii) depreciation and
amortization, and (iii) Fixed Charges.
"Indemnitee" has the meaning set forth in Section 10.3 (b).
"Interest Period" means (1) with respect to each Eurodollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of Interest
Rate Election and ending one, two, three or six months thereafter, as the
Borrower may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Eurodollar Business Day;
(b) any Interest Period which begins on the last Eurodollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on the
last Eurodollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each Base Rate Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing or on
the date specified in an applicable Notice of Interest Rate Election and ending
30 days thereafter, and each successive period of 30 days commencing on the last
day of the immediately preceding Interest Period applicable thereto; provided
that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end
on a day which is not a Eurodollar Business Day shall be extended to
the next succeeding Eurodollar Business Day; and
(b) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end on
the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
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"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, Guarantee, time deposit or otherwise
(but not including any demand deposit).
"Issuing Bank" means Bank One, N.A.
"Joint General Contractor Arrangement" means an arrangement pursuant
to which a Subsidiary of the Borrower engaged in the construction business and
one or more other entities act as co-general contractors or co-construction
managers or in a similar capacity with respect to a specific construction
project or group of construction projects; provided that such arrangement does
not involve an Investment in real property by the Borrower, such Subsidiary or
any such other entity.
"Letter of Credit" means a letter of credit issued hereunder by the
Issuing Bank.
"Letter of Credit Exposure" means, with respect to any Bank at any
time, the sum of (i) such Bank's ratable share of all Reimbursement Obligations
then owing to the Issuing Bank, and (ii) such Bank's ratable participation in
the aggregate amount then available or thereafter to become available for
drawing under the terms of all Letters of Credit then outstanding.
"Leverage Ratio" means at any date Consolidated Debt at such date
divided by Consolidated Adjusted Net Worth at such date.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a loan made by a Bank pursuant to Section 2.1; provided
that, if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Loan" shall refer to
the combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.
"London Interbank Offered Rate" has the meaning set forth in Section
2.5(c).
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$1,000,000.
"Material Financial Obligations" means payment or collateralization
obligations in respect of Derivatives Obligations and/or a principal or face
amount of Debt of the Borrower and/or one or more of its Subsidiaries, arising
in one or more related or unrelated transactions, exceeding in the aggregate
$1,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a) (3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.8.
"Notice of Letter of Credit Issuance" has the meaning set forth in
Section 2.14(b).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 10.6 (b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group, or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest per annum announced by the
Agent from time to time as its prime rate, with any change thereto effective as
of the opening of business on the day of the change; which Prime Rate is not
necessarily the best interest rate offered by Agent.
"Quarterly Payment Dates" means each March 31, June 30, September 30
and December 31.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Obligations" means the obligations of the Borrower to
reimburse the Issuing Bank for drawings under the Letters of Credit.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Loans and/or having Letter of Credit Exposures equal in
amount to at least 66 2/3% of the sum of the aggregate principal amount of the
Loans and the aggregate amount of the Letter of Credit Exposures then
outstanding.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"Rickenbacker Guaranty" means the amended Guaranty dated as of
August 1, 1995, from the Guarantor and the Borrower to Bank One, N.A. pursuant
to which the Borrower and the Guarantor have agreed to guarantee certain
obligations of Rickenbacker Holdings, Inc., as amended from time to time.
"Rickenbacker Facility" means the amended Reimbursement Agreement
dated as of August 1, 1995, between Bank One, N.A. and Rickenbacker Holdings,
Inc., as amended from time to time.
"Schedule A Subsidiary" means any corporation set forth on Schedule
A hereto.
"Short Term Investment" means any investment grade Investment,
including but not limited to Investments such as (i) asset-backed securities,
(ii) mortgaged-backed securities, (iii) collateralized mortgage obligations,
(iv) commercial paper, (v) repurchase agreements with respect to securities
described in clauses (i) through (iii) above entered into with an office of a
bank, trust company, brokerage company or issuer which (A) is organized under
the laws of the United States or any state thereof, Japan or a country that is a
member of the European Economic Community, and (B) has capital, surplus and
undivided profits aggregating at least $50,000,000 (or the equivalent thereof in
foreign currency); provided that any such Investment described in this
definition, or the issuer or guarantor thereof, is rated at least BBB by
Standard & Poors Rating Services or Baa by Xxxxx'x Investor Service, Inc., and
in each case that such Investment matures within five years from the date of
acquisition thereof by the Borrower or a Subsidiary.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
Unless otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
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"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) obligations of any
state or municipality, or any agency or instrumentality thereof, that are rated
at least AA or SP-1 by Standard & Poor's Ratings Services or AA or MIG-1 by
Xxxxx'x Investors Service, Inc., (iii) commercial paper rated, or money-market
preferred stock issued by Persons whose commercial paper is rated, at least A-1
by Standard & Poor's Ratings Services or P-1 by Xxxxx'x Investors Service, Inc.,
(iv) time deposits with, including certificates of deposit issued by, or
banker's acceptances issued by, any office of any bank or trust company which
(A) is organized under the laws of the United States or any state thereof, Japan
or a country that is a member of the European Economic Community, and (B) has
capital, surplus and undivided profits aggregating at least $50,000,000 (or the
equivalent thereof in foreign currency), or (v) repurchase agreements with
respect to securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause (iv) above,
provided in each case that such Investment matures within one year from the date
of acquisition thereof by the Borrower or a Subsidiary.
"Termination Date" means July 1, 2001 (or July 1, 2002 or July 1,
2003 if the Revolving Credit Period shall have been extended to such date
pursuant to Section 2.1(b)) or, if such day is not a Eurodollar Business Day,
the next succeeding Eurodollar Business Day unless such Eurodollar Business Day
falls in another calendar month, in which case the Termination Date shall be the
next preceding Eurodollar Business Day.
"Xxxxxx Development Corporation" means Xxxxxx Development
Corporation, a Delaware corporation, and its successors.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States thereof and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Agent that the
Borrower wishes to amend any covenant in Article 5 to eliminate or otherwise
adjust for the effect of any change in generally accepted accounting principles
on the operation of such covenant (or if the Agent notifies the Borrower that
the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
ARTICLE 2: THE CREDITS
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SECTION 2.1. Commitments to Lend. (a) Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower from time to time during the Revolving Credit Period, provided that,
immediately after each such loan is made, the sum of the aggregate outstanding
principal amount of Loans by such Bank plus its Letter of Credit Exposure shall
not exceed the amount of its Commitment. Each Borrowing hereunder shall be in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate amount of the unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay or prepay Loans to the extent permitted by
Section 2.10 and reborrow at any time during the Revolving Credit Period under
this Section.
(b) The Revolving Credit Period may be extended, in the manner set
forth in this subsection (b), on July 1, 1999 and/or on July 1, 2000 (in either
case, the "Extension Date"), in each case for a period of one year after the
date on which the Revolving Credit Period would otherwise have expired. If the
Borrower wishes to request an extension of the Revolving Credit Period on an
Extension Date, it shall give written notice to that effect to the Agent not
less than 60 nor more than 90 days prior to such Extension Date, whereupon the
Agent shall notify each of the Banks of such notice. Each Bank will use its best
efforts to respond to such request, whether affirmatively or negatively, within
30 days after receiving notice from the Agent. If all Banks respond
affirmatively, then, subject to receipt by the Agent prior to such Extension
Date of counterparts of an Extension Agreement in substantially the form of
Exhibit E hereto duly completed and signed by all of the parties hereto, the
Revolving Credit Period shall be extended, effective on such Extension Date, to
July 1, 2002 or July 1, 2003, as the case may be.
SECTION 2.2. Method of Borrowing. (a) The Borrower shall give the
Agent notice (a "Notice of Borrowing") not later than 11:00 A.M. (Eastern
Standard Time) on (y) the date of each Base Rate Borrowing, and (z) the third
Eurodollar Business Day before each Eurodollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Eurodollar
Business Day in the case of a Eurodollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to bear
interest initially at the Base Rate or a Eurodollar Rate; and
(iv) in the case of a Eurodollar Borrowing, the duration of
the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Borrowing, and such Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(c) Not later than 12:00 Noon (Eastern Standard Time) on the date of
each Borrowing, each Bank shall make available its ratable share of such
Borrowing, in Federal or other funds immediately available in Columbus, Ohio, to
the Agent at its address referred to in Section 10.1. Unless the Agent
determines that any applicable condition specified in Article 3 has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address.
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(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsection (c) of this Section and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable to such Borrowing pursuant to Section 2.5,
and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.3. Notes. (a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type be evidenced by a separate Note in an amount
equal to the aggregate unpaid principal amount of such Loans. Each such Note
shall be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
type. Each reference in this Agreement to the "Note" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(b), the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Notes. Each
Bank is hereby irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any such schedule as
and when required.
SECTION 2.4. Maturity of Loans. Each Loan shall mature, and the
principal amount thereof shall be due and payable, on the Termination Date.
SECTION 2.5. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the sum of
(i) the Base Rate Margin, plus (ii) the Base Rate for such day. Such interest
shall be payable for each Interest Period on the last day thereof and, with
respect to the principal amount of any Base Rate Loan converted to a Eurodollar
Loan, on each date a Base Rate Loan is so converted. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each Eurodollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Eurodollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, every three
months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Eurodollar
Reserve Percentage.
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The "London Interbank Offered Rate" applicable to any Interest
Period means the rate per annum (rounded to the nearest 1/16 of 1%) appearing on
the Screen as the London Interbank Offered Rate for deposits in dollars at
approximately 11:00 A.M. London time (or as soon thereafter as practicable) two
Eurodollar Business Days prior to the first day of such Interest Period in an
amount approximately equal to the principal amount of the requested Eurodollar
Loan. If such rate does not appear on the Screen (or, if the Screen shall cease
to be publicly available or if the information contained on the Screen, in the
Agent's reasonable judgment, shall cease to accurately reflect such London
Interbank Offered Rate, as reported by any publicly available source of similar
market data selected by the Agent that, in the Agent's reasonable judgment,
accurately reflects such London Interbank Offered Rate), the London Interbank
Offered Rate shall mean, with respect to any Eurodollar Loan for any Interest
Period, the arithmetic mean, as determined by the Agent, of the rate per annum
(rounded to the nearest 1/16 of 1%) quoted by the Agent at approximately 11:00
A.M. London time (or as soon thereafter as practicable) two Eurodollar Business
Days prior to the first day of the Interest Period for such Eurodollar Loan for
the offering by the Agent to leading banks in the London Interbank market of
deposits in dollars having a term comparable to such Interest Period and in an
amount comparable to the principal amount of the Eurodollar Loan to be made by
the Agent for such Interest Period.
"Screen" means, with respect to dollars, the relevant Dow Xxxxx
Markets Page on which appears the London Interbank Offered Rate for deposits in
dollars; provided that, if there is no such Dow Xxxxx Markets Page, the relevant
Reuters Screen Page will be substituted.
"Eurodollar Reserve Percentage" means 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 maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Eurodollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 2%, plus the Eurodollar Margin for such day, plus the
higher of (i) the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum at which one
day (or, if such amount due remains unpaid more than three Eurodollar Business
Days, then for such other period of time not longer than three months as the
Agent may select) deposits in dollars in an amount approximately equal to such
overdue payment due to the Agent appearing on the Screen for the applicable
period determined as provided above, by (y) 1.00 minus the Eurodollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.1 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day), and (ii) the Adjusted London
Interbank Offered Rate applicable to such Loan immediately before such payment
was due.
(d) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) If the Agent does not furnish a timely quotation, the Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Banks or, if none of such quotations is
available on a timely basis, the provisions of Section 8.1 shall apply.
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SECTION 2.6. Fees. (a) The Borrower shall pay to the Agent, for the
account of the Banks ratably in proportion to their Commitments, a commitment
fee for each day at the Commitment Fee Rate (specified in the Pricing Schedule)
on the amount by which the aggregate amount of the Commitments exceeds the sum
of the aggregate outstanding principal amount of the Loans and the aggregate
amount of the Letter of Credit Exposures on such day. Such commitment fee shall
accrue from and including the Effective Date to but excluding the date on which
the Commitments terminate in their entirety. Fees accrued under this subsection
shall be payable quarterly in arrears on each Quarterly Payment Date and on the
date on which the Commitments terminate in their entirety.
(b) The Borrower shall pay to the Agent for the account of the
Banks, ratably in proportion to their Commitments, a letter of credit fee
accruing daily on the aggregate amount then available for drawing under all
Letters of Credit at a rate per annum determined in accordance with the Pricing
Schedule. Fees accrued under this subsection shall be payable quarterly in
arrears on each Quarterly Payment Date, on the date on which the Commitments
terminate in their entirety and (if later) on the date on which the Letter of
Credit Exposures terminate in their entirety.
SECTION 2.7. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if at such time no Loans are
outstanding and no Bank has any Letter of Credit Exposure, or (ii) ratably
reduce from time to time by an aggregate amount of $5,000,000 or a larger
multiple of $1,000,000, the aggregate amount of the Commitments in excess of the
sum of the aggregate outstanding principal amount of the Loans and the aggregate
amount of the Letter of Credit Exposures.
SECTION 2.8. Method of Electing Interest Rates. (a) The Loans
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Eurodollar Loans as of any Eurodollar
Business Day; and
(ii) if such Loans are Eurodollar Loans, the Borrower may
elect to convert such Loans on the last day of any applicable
Interest Period to Base Rate Loans, or elect to continue such Loans
as Eurodollar Loans for an additional Interest Period.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent not later than 11:00 A.M. (Eastern Standard Time)
on the third Eurodollar Business Day before the conversion or continuation
selected in such notice is to be effective. A Notice of Interest Rate Election
may, if it so specifies, apply to only a portion of the aggregate principal
amount of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group, and (ii) the portion to
which such notice applies, and the remaining portion to which it does not apply,
are each $5,000,000 or any larger multiple of $1,000,000. If no such notice is
timely received prior to the end of an Interest Period, the Borrower shall be
deemed to have elected that such Group of Loans be converted to Base Rate Loans.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans are to be converted to
Eurodollar Loans, the duration of the next succeeding Interest
Period applicable thereto; and
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(iv) if such Loans are to be continued as Eurodollar Loans for
an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof, and such notice shall not thereafter be revocable
by the Borrower.
SECTION 2.9. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrower may
(i) upon notice to the Agent not later than 11:00 A.M.
(Eastern Standard Time) on the date of prepayment, prepay any Group
of Base Rate Loans on any Domestic Business Day; or
(ii) upon at least three Eurodollar Business Days' notice to
the Agent, prepay any Group of Eurodollar Loans on the last day of
any Interest Period applicable thereto;
in each case in whole or in part in amounts aggregating $5,000,000 or any larger
multiple of $1,000,000 (except in the case of the prepayment of the full
aggregate outstanding amount of any Group of Loans, in which case such full
aggregate outstanding balance may be prepaid), by paying the principal amount to
be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Group of Loans.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof, and of such
Bank's ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.11. General Provisions as to Payments. (a) The Borrower
shall make each payment of (i) principal of, and interest on, the Loans, (ii)
the Reimbursement Obligations and interest thereon, and (iii) fees payable
hereunder (other than fees payable directly to the Issuing Bank), not later than
12:00 Noon (Eastern Standard Time) on the date when due, in Federal or other
funds immediately available in Columbus, Ohio, to the Agent at its address
referred to in Section 10.1. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of the Reimbursement Obligations or interest thereon or of fees shall be due
on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Eurodollar Loans shall be due on a
day which is not a Eurodollar Business Day, the date for payment thereof shall
be extended to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Eurodollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
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SECTION 2.12. Funding Losses. If the Borrower makes any payment of
principal with respect to any Eurodollar Loan or any Eurodollar Loan is
converted (pursuant to Articles 6 or 8 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.5(c), or if the Borrower fails to
borrow, prepay, convert or continue any Eurodollar Loans after notice has been
given to any Bank in accordance with Section 2.2(b), 2.8(c), or 2.10(b), the
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow, prepay, convert or continue, provided that such Bank shall have
delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Letters of Credit. (a) Subject to the terms and
conditions set forth in this Agreement, the Issuing Bank may issue letters of
credit hereunder from time to time before the tenth Domestic Business Day before
the Termination Date upon the request of the Borrower; provided that,
immediately after each Letter of Credit is issued, (i) the aggregate amount of
the Letter of Credit Exposures shall not exceed $10,000,000 and (ii) with
respect to each Bank, the sum of its Letter of Credit Exposure plus the
aggregate outstanding principal amount of its Loans shall not exceed the amount
of its Commitment. Upon the issuance by the Issuing Bank of a Letter of Credit,
the Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each Bank, and each Bank shall be deemed, without further action by
any party hereto, to have purchased from the Issuing Bank, a participation in
such Letter of Credit and the related Reimbursement Obligations in the
proportion that its Commitment bears to the aggregate amount of the Commitments.
(b) The Borrower shall give the Issuing Bank notice at least ten
days prior to the requested issuance of a Letter of Credit specifying the date
such Letter of Credit is to be issued, and describing the terms of such Letter
of Credit and the nature of the transactions to be supported thereby (such
notice, including any such notice given in connection with the extension of a
Letter of Credit, being called a "Notice of Letter of Credit Issuance"). Upon
receipt of a Notice of Letter of Credit Issuance, the Issuing Bank shall
promptly notify the Agent, and the Agent shall promptly notify each Bank of the
contents thereof and of the amount of such Bank's participation in such Letter
of Credit. The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article III, be subject to the
conditions precedent that such Letter of Credit shall be in such form and
contain such terms as shall be satisfactory to the Issuing Bank and that the
Borrower shall have executed and delivered such other instruments and agreements
relating to such Letter of Credit as the Issuing Bank shall have reasonably
requested. The Borrower shall also pay to the Issuing Bank for its own account a
fronting fee and issuance, drawing, amendment and extension charges in the
amounts and at the times agreed to by the Borrower and the Issuing Bank. The
extension or renewal of any Letter of Credit shall be deemed to be an issuance
of such Letter of Credit, and if any Letter of Credit contains a provision
pursuant to which it is deemed to be extended unless notice of termination is
given by the Issuing Bank, the Issuing Bank shall timely give such notice of
termination unless it has theretofore timely received a Notice of Letter of
Credit Issuance and the other conditions to issuance of a Letter of Credit have
also theretofore been met with respect to such extension. No Letter of Credit
shall have a term of more than one year; provided that a Letter of Credit may
contain a provision pursuant to which it is deemed to be extended on an annual
basis unless notice of termination is given by the Issuing Bank; provided
further that no Letter of Credit shall have a term extending or be so extendible
beyond the fifth Domestic Business Day before the Termination Date.
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(c) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the Issuing Bank shall notify
the Agent and the Agent shall promptly notify the Borrower and each other Bank
as to the amount to be paid as a result of such drawing and the payment date.
The Borrower shall be irrevocably and unconditionally obligated forthwith to
reimburse the Issuing Bank for any amounts paid by the Issuing Bank upon any
drawing under any Letter of Credit, without presentment, demand, protest or
other formalities of any kind. All such amounts paid by the Issuing Bank and
remaining unpaid by the Borrower shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day. In addition, each Bank will pay to
the Agent, for the account of the Issuing Bank, immediately upon the Issuing
Bank's demand at any time during the period commencing after such drawing until
reimbursement therefor in full by the Borrower, an amount equal to such Bank's
ratable share of such drawing (in proportion to its participation therein),
together with interest on such amount for each day from the date of the Issuing
Bank's demand for such payment (or, if such demand is made after 12:00 Noon
(Eastern Standard Time) on such date, from the next succeeding Domestic Business
Day) to the date on which such Bank pays such amount at the rate of interest
applicable to Base Rate Loans for such day. The Issuing Bank will pay to each
Bank ratably all amounts received from the Borrower for application in payment
of its Reimbursement Obligations in respect of any Letter of Credit, but only to
the extent such Bank has made payment to the Issuing Bank in respect of such
Letter of Credit pursuant hereto.
(d) The obligations of the Borrower and each Bank under subsection
(c) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including without limitation the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of this Agreement or any Letter of
Credit or any document related hereto or thereto;
(iii) the use which may be made of any Letter of Credit by, or
any acts or omission of, a beneficiary of any Letter of Credit (or
any Person for whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other
rights that the Borrower may have at any time against a beneficiary
of any Letter of Credit (or any Person for whom the beneficiary may
be acting), the Banks (including the Issuing Bank) or any other
Person, whether in connection with this Agreement or such Letter of
Credit or any document related hereto or thereto or any unrelated
transaction;
(v) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect whatsoever;
(vi) payment under any Letter of Credit against presentation
to the Issuing Bank of a draft or certificate that does not comply
with the terms of such Letter of Credit, provided that the Issuing
Bank's determination that documents presented under such Letter of
Credit comply with the terms thereof shall not have constituted
gross negligence or willful misconduct of the Issuing Bank; or
(vii) any other act or omission to act or delay of any kind by
any Bank (including the Issuing Bank), the Agent or any other Person
or any other event or circumstance whatsoever that might, but for
the provisions of this clause (vii), constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
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(e) The Borrower agrees to indemnify and hold harmless each Bank
(including Bank One, N.A. in its capacity as Issuing Bank or otherwise) and the
Agent from and against any and all claims, damages, losses, liabilities, costs
or expenses which such Bank or the Agent may incur (including, without
limitation, any claims, damages, losses, liabilities, costs or expenses which
the Issuing Bank may incur by reason of or in connection with the failure of any
other Bank to fulfill or comply with its obligations to the Issuing Bank
hereunder (but nothing herein contained shall affect any rights the Borrower may
have against such defaulting Bank)), and none of the Banks (including Bank One,
N.A. in its capacity as Issuing Bank or otherwise) or the Agent or any of their
officers or directors or employees or agents shall be liable or responsible, by
reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Letter of Credit, including without
limitation any of the circumstances enumerated in subsection (d) above, as well
as (i) any error, omission, interruption or delay in transmission or delivery of
any message, by mail, cable, telegraph, telex or otherwise, (ii) any error in
interpretation of technical terms, (iii) any loss or delay in the transmission
of any document required in order to make a drawing under a Letter of Credit, or
(iv) any consequences arising from causes beyond the control of the Issuing
Bank, including without limitation any government acts, or any other
circumstances whatsoever in making or failing to make payment under such Letter
of Credit; provided that the Borrower shall not be required to indemnify the
Issuing Bank for any claims, damages, losses, liabilities, costs or expenses,
and the Borrower shall have a claim for direct (but not consequential) damage
suffered by it, to the extent found by a court of competent jurisdiction to have
been caused by (x) the willful misconduct or gross negligence of the Issuing
Bank in determining whether a request presented under any Letter of Credit
complied with the terms of such Letter of Credit, or (y) the Issuing Bank's
failure to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of the Letter of
Credit. Nothing in this subsection (e) is intended to limit the obligations of
the Borrower under any other provision of this Agreement. To the extent the
Borrower does not indemnify the Issuing Bank as required by this subsection, the
Banks agree to do so ratably in proportion to their Commitments.
ARTICLE 3: CONDITIONS
SECTION 3.1. Effective Date. This Agreement shall become effective
when the Agent shall have received:
(a) counterparts hereof signed by each of the parties listed on the
signature pages hereof (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the Agent in
form satisfactory to it of facsimile, telex or other written confirmation
from such party that it has executed a counterpart hereof);
(b) a duly executed Note for the account of each Bank dated on or
before the Effective Date complying with the provisions of Section 2.3;
(c) for the account of each Bank, repayment of all outstanding
Loans, if any, made by it under the Restated and Amended Credit Agreement
by and among the Borrower, the Guarantor, certain of the Banks parties
hereto and Xxxxxx Guaranty Trust Company as Agent, the predecessor
agreement of this Agreement, before the Effective Date, together with
interest accrued thereon and all unpaid commitment fees accrued for its
account under said agreement for the period up to but excluding the
Effective Date, as well as reimbursement to the Banks for any resulting
funding losses pursuant to Section 2.12 of said agreement;
(d) (i) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx,
counsel for the Borrower and the Guarantor, substantially in the form of
Exhibit B, hereto, and (ii) an opinion of Xxxx X. Gozo, General Counsel of
the Borrower and the Guarantor, substantially in the form of Exhibit C
hereto; and
(e) all documents the Agent may reasonably request relating to the
existence of the Borrower and the Guarantor, the corporate authority for
and the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent.
The Agent shall promptly notify the Borrower and the Banks of the Effective
Date, and such notice shall be conclusive and binding on all parties hereto.
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SECTION 3.2. Borrowings and Issuances of Letters of Credit. The
obligation of any Bank to make a Loan on the occasion of any Borrowing, and any
obligation of the Issuing Bank to issue (or renew or extend the term of) any
Letter of Credit, is subject to the satisfaction of the following conditions:
(a) the fact that the Effective Date shall have occurred on or prior
to July 1, 1998;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.2, or receipt by the Issuing Bank of a Notice of Letter of
Credit Issuance as required by Section 2.14(b);
(c) the fact that, immediately before and after such Borrowing or
issuance of a Letter of Credit, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such
Borrowing or issuance of a Letter of Credit.
Each Borrowing and issuance of a Letter of Credit hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
or issuance of a Letter of Credit as to the facts specified in clauses (c) and
(d) of this Section.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to the Agent and the Banks
now or hereafter parties hereto that:
SECTION 4.1. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and by the Guarantor of this Agreement, are within the
Borrower's and the Guarantor's respective corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the respective certificate of incorporation or respective
by-laws of the Borrower or the Guarantor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or the
Guarantor or result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
SECTION 4.3. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Guarantor, and the Notes, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of the Borrower, and all of such documents are or will
be enforceable in accordance with their respective terms, except as (i) the
validity, binding nature or enforceability hereof or thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
SECTION 4.4. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1997 and the related consolidated
statements of operations, cash flows and stockholders' equity for the Fiscal
Year then ended, reported on by Xxxxxx Xxxxxxxx LLP and set forth in the
Borrower's 1997 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such Fiscal Year.
(b) Since December 31, 1997 there has been no material adverse
change in the business, financial position, results of operations or prospects
of (i) the Guarantor, or (ii) the Borrower and its Consolidated Subsidiaries,
considered as a whole.
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SECTION 4.5. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, or which in any
manner draws into question the validity of this Agreement or the Notes.
SECTION 4.6. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code, or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.7. Environmental Matters. The Borrower has reasonably
concluded that Environmental Laws are unlikely to have a material adverse effect
on the business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.8. Compliance with Laws. The Borrower and its Subsidiaries
are in compliance with all applicable laws, ordinances, rules, regulations and
requirements of governmental authorities, except where the necessity of
compliance therewith is being contested in good faith by appropriate proceedings
and except where the failures to be in compliance therewith, in the aggregate,
do not, and are not reasonably expected to, have a material adverse effect on
the business, financial position, results of operations or prospects of the
Borrower and its Subsidiaries, considered as a whole.
SECTION 4.9. Contractual Arrangements. Each contract or agreement to
which the Borrower or any of its Subsidiaries is a party is a valid and binding
obligation of each party thereto, the Borrower or the Subsidiary of the Borrower
that is a party thereto is not in default thereunder, and the Borrower has no
knowledge of a continuing default thereunder by any other party thereto, except
to the extent that the cumulative effect of any such agreements not being valid
and binding and of any such defaults does not have a material adverse effect on
the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.10. Taxes. The Borrower and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them, and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.11. Subsidiaries. Each of the Borrower's corporate
Subsidiaries that actively engages in business is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
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SECTION 4.12. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.13. Full Disclosure. All information heretofore furnished
by the Borrower to the Agent or any Bank for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Bank will
be, true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Borrower or the Guarantor
to perform its obligations under this Agreement.
ARTICLE 5: COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment or
Letter of Credit Exposure hereunder or any amount payable under any Note remains
unpaid:
SECTION 5.1. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of operations and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all reported on in a manner acceptable to
the Securities and Exchange Commission by Xxxxxx Xxxxxxxx LLP or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Quarter and the related
consolidated statements of operations and cash flows for such Fiscal
Quarter and for the portion of Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for
the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief
accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of consolidated
financial statements referred to in clause (a) above, consolidating
balance sheets of the Borrower and each of its Consolidated Subsidiaries
as of the end of the Fiscal Year covered by such financial statements and
the related consolidating statements of operations for the Fiscal Year
then ended, certified by the chief financial officer or the chief
accounting officer of the Borrower as being the consolidating financial
statements used by the Borrower in preparing such consolidated financial
statements and as being prepared on the basis of accounting principles
consistent with those used in preparing such consolidated financial
statements;
(d) simultaneously with the delivery of each set of consolidated
financial statements referred to in clause (b) above, consolidating
balance sheets of the Borrower and its Consolidated Subsidiaries as of the
end of the Fiscal Quarter covered by such financial statements and the
related consolidating statements of operations for such Fiscal Quarter and
for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for
the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, certified by the chief financial officer or the
chief accounting officer of the Borrower as being the consolidating
financial statements used by the Borrower in preparing such consolidated
financial statements and as being prepared on the basis of accounting
principles consistent with those used in preparing such consolidated
financial statements;
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(e) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, (i) a modified
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of the period covered by such financial
statements prepared on the basis of accounting principles consistent with
those on the basis of which the consolidated balance sheet delivered
pursuant to clause (a) or (b) above was prepared, except that such
modified balance sheet shall present assets and liabilities as current and
long-term and shall be prepared on the assumption that all real estate of
the Borrower and its Consolidated Subsidiaries which, as of the end of
such period, is held for sale is a current asset and that all obligations
of the Borrower and its Consolidated Subsidiaries of which the Borrower
reasonably expects the obligor would be relieved (by discharge, assumption
by a third party or otherwise) upon the sale of such real estate are
current liabilities, and (ii) a certificate of the chief financial officer
or the chief accounting officer of the Borrower stating that such modified
balance sheet was prepared in accordance with clause (i) above;
(f) simultaneously with delivery of each set of financial
statements referred to in clauses (a) and (b) above, a summary of each
construction project of the Borrower and its Subsidiaries with respect to
which a contract has been obtained but not completed, the Backlog Volume
of which is greater than $10,000,000 or the Backlog Earnings of which are
greater than $500,000 as of the end of the period covered by such
financial statements, which summary shall be in the form of the summary
heretofore provided to the Banks under this clause (f);
(g) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements of
Sections 5.7 to 5.12, inclusive, on the date of such financial statements
and to determine the Fixed Charge Ratio and Consolidated Adjusted Net
Worth for purposes of the Pricing Schedule, and (ii) stating whether any
Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(h) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe that
any Default existed on the date of such statements, and (ii) confirming
the calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (g) above;
(i) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting officer
of the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(j) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(k) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which the Borrower shall have filed with
the Securities and Exchange Commission;
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(1) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC, (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice, (iii) receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice,
(iv) applies for a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code, a copy of such application, (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC, (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice, or (vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has resulted
or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take; and
(m) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Subsidiary to keep,
all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Borrower will insure and keep insured, and will cause each
of its Subsidiaries to insure and keep insured, with financially sound and
reputable insurers, so much of their respective properties, in such amounts (and
with such deductibles), as companies engaged in a similar business in accordance
with good business practice customarily insure properties of a similar character
against loss by fire and from other causes. In addition, the Borrower will, and
will cause each Subsidiary to, maintain with financially sound and reputable
insurers public liability insurance against claims for personal injury, death or
property damage suffered by others upon or in or about any premises occupied by
it or occurring as a result of its ownership, maintenance or operation of any
automobiles, trucks or other vehicles, aircraft or other facilities or as a
result of the use of products manufactured, constructed or sold by it or
services rendered by it, and such other insurance, in such amounts (and with
such deductibles) as is usually carried by companies engaged in a similar
business and as is in accordance with good business practice.
SECTION 5.4. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary to continue, to engage in
business of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect, and
will cause each Subsidiary to preserve, renew and keep in full force and effect
their respective corporate existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section 5.4 shall prohibit (i) mergers and consolidations
permitted by Section 5.15 or, (ii) the termination of the corporate existence of
any Subsidiary other than the Guarantor if the Borrower in good faith determines
that such termination is in the best interest of the Borrower and is not
materially disadvantageous to the Banks.
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SECTION 5.5. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder), except where the necessity of compliance therewith is contested in
good faith by appropriate proceedings, and except where the failures to comply
therewith, in the aggregate, do not, and are not reasonably expected to, have a
material adverse effect on the business, financial position, results of
operations or prospects of the Borrower and its Subsidiaries, considered as a
whole.
SECTION 5.6. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit,
and will cause each Subsidiary to permit, representatives of any Bank at such
Bank's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired. Each Bank shall hold in
confidence all non-public information obtained pursuant to this Section 5.6 and
marked or otherwise identified in writing as being confidential, except to the
extent that such information (i) becomes generally available to the public other
than as the result of disclosure by any Bank, (ii) was available to any Bank on
a non-confidential basis prior to its disclosure to any Bank pursuant to this
Section 5.6, (iii) becomes available to any Bank on a non-confidential basis
from a source other than the Borrower or any of its Subsidiaries at a time when
such source is permitted to make such information available to such Bank, or
(iv) is pertinent to any litigation between the Borrower or any of its
Subsidiaries and such Bank; provided that any Bank may disclose such information
(x) to any other Bank, which shall be subject to the provisions of this Section
5.6 with respect to such information, (y) at the request of a bank regulatory
agency or in connection with an examination of such Bank by bank examiners, and
(z) to such Bank's independent auditors and legal counsel, it being understood
that disclosure of such information pursuant to clause (y) or (z) of this
proviso shall not otherwise limit the applicability of this sentence to such
information and that, at the time of disclosure of such information pursuant to
clause (z) of this proviso, such Bank shall inform such independent auditor or
legal counsel that such information is subject to this Section 5.6; and
provided, further, that if any Bank is requested or required in connection with
any legal process to disclose any such information, such Bank will, to the
extent it may lawfully do so, provide the Borrower with prompt notice of such
request or requirement; unless the Borrower provides such Bank with evidence
(including, without limitation, a court order) satisfactory to such Bank that it
is not compelled to disclose such information in connection with such legal
process, such Bank may, at such time as it is compelled to do so, disclose that
portion of such information that it is compelled to disclose.
SECTION 5.7. Current Ratio. Consolidated Adjusted Current Assets
will at no time be less than 100% of Consolidated Adjusted Current Liabilities.
SECTION 5.8. Debt. The Leverage Ratio will at no time exceed 2.50 to
1.
SECTION 5.9. Minimum Consolidated Adjusted Net Worth. Consolidated
Adjusted Net Worth will not as of any date (a "date of determination") be less
than the sum of (a) $67,000,000, plus (b) the aggregate net proceeds received by
the Borrower or any Consolidated Subsidiary from the issuance of equity
securities after December 31, 1997 and on or before such date of determination;
but specifically excluding the aggregate net proceeds received by the Borrower
from the issuance of equity securities which are used by the Borrower to acquire
the equity interest of the Borrower owned by Xxxx Xxxxxxx Holding AG; plus (c)
an amount equal to 50% of the consolidated net income of the Borrower and its
Subsidiaries for each Fiscal Year ending on or before such date of determination
(commencing with the fiscal year ending on December 31, 1998) for which such
consolidated net income is greater than zero.
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SECTION 5.10. Fixed Charge Coverage. The Fixed Charge Ratio will
not, for any period of four consecutive Fiscal Quarters, be less than 1.45 to 1.
SECTION 5.11. Intentionally Deleted.
SECTION 5.12. Debt of Guarantor. The sum, without duplication, of
(i) total Debt of the Guarantor and its Subsidiaries (determined on
a consolidated basis), plus
(ii) contingent obligations of the Guarantor and its Subsidiaries to
reimburse or prepay any bank or other Person in respect of amounts paid or
payable under a letter of credit, banker's acceptance or similar
instrument (except letters of credit, banker's acceptances and similar
instruments that support, or are created as a result of the payment of,
trade accounts payable of the Guarantor and its Subsidiaries arising in
the ordinary course of business), plus
(iii) the aggregate amount of all present and future obligations of
Persons under operating leases that are guaranteed by the Guarantor or any
of its Subsidiaries
will at no time exceed $59,250,000; provided that such amount shall be reduced
from time to time by an amount equal to the amount of any reduction in the
maximum liability of the Guarantor under the Rickenbacker Guaranty; and
provided, further, that, of such $59,250,000, no more than $56,000,000 may
consist of debt for borrowed money, Guarantees of debt of other persons for
borrowed money and contingent obligations of the type referred to in clause (ii)
above (such $56,000,000 limit being reduced from time to time by the amount of
any reduction in the $59,250,000 limit pursuant to the immediately preceding
proviso), and the remaining amount may consist only of present and future
obligations of the Guarantor and its Subsidiaries under operating leases that
are guaranteed by the Guarantor or any of its Subsidiaries.
SECTION 5.13. Investments. (a) Neither the Borrower nor any
Consolidated Subsidiary will make or acquire any Investment in any Person other
than:
(i) Investments in Subsidiaries, provided such Subsidiaries are
existing on the date hereof;
(ii) loans to employees of the Borrower or any of its Subsidiaries;
provided that the aggregate outstanding principal amount of such loans
shall not at any time exceed $4,000,000;
(iii) Temporary Cash Investments;
(iv) time deposits with, including certificates of deposit issued
by, or banker's acceptances issued by, any office of any bank or trust
company which (A) is organized under the laws of a jurisdiction other than
the United States or any state thereof, Japan or a country that is a
member of the European Economic Community and (B) has capital, surplus and
undivided profits aggregating at least $50,000,000 (or the equivalent
thereof in foreign currency); provided that the aggregate amount of
Investments pursuant to this clause (iv) shall not at any time exceed
$5,000,000;
(v) Short Term Investments; and
(vi) any other Investment, provided that, immediately after such
Investment is made, the aggregate cost of all Investments made pursuant to
this clause (vi), in each case net of any return of capital or proceeds of
sale, does not exceed 30% of Consolidated Adjusted Net Worth.
(b) Notwithstanding subsection (a) of this Section 5.13, the
Borrower and its Subsidiaries may acquire an equity interest in any Person
engaged in the general contracting business; provided, that (i) the aggregate
cash consideration paid by the Borrower and its Subsidiaries for all such equity
interests during any period of twelve consecutive months shall not exceed
$10,000,000, and (ii) the total cash consideration paid by the Borrower and its
Subsidiaries for such equity interests in any one Person shall not exceed
$10,000,000.
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SECTION 5.14. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding, or that may be incurred pursuant to committed credit lines
existing, on the date of this Agreement in an aggregate principal amount
not exceeding $100,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(e) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased and is not secured by any additional assets; and
(f) Liens arising in the ordinary course of its business which (i)
do not secure Debt, (ii) do not secure any obligation in an amount
exceeding $10,000,000, and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof
in the operation of its business.
SECTION 5.15. Consolidations, Mergers and Sales of Assets. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution) or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets, or make any material change in the present method
of conducting business, except that (i) any Subsidiary may be merged into the
Borrower (providing that the Borrower shall be the surviving corporation) or
merged or consolidated with or into any one or more other Subsidiaries, (ii) any
Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets
to the Borrower or a wholly-owned Subsidiary of the Borrower, and (iii) the
Borrower may be merged or consolidated with any other Person; provided that the
Borrower is the surviving corporation and no Default would occur hereunder after
giving effect thereto; and provided further, that none of the Borrower, the
Guarantor, or any of the Subsidiaries of Borrower, or any Subsidiaries of such
Subsidiaries, shall enter into any merger or consolidation with any Person
engaged in the business of real estate development as its primary business.
Neither the Borrower nor any of its Subsidiaries shall sell or otherwise dispose
of any of its assets except for sales or other dispositions in the ordinary
course of business of (x) obsolete or worn out property, or (y) other property;
provided that the aggregate book value of such other property so sold or
disposed of in any twelve month period (exclusive of sales and dispositions
pursuant to the following proviso) shall not exceed 10% of the Consolidated
Adjusted Total Assets of the Borrower and its Subsidiaries at the beginning of
such period; and provided, further, that Xxxxxx Development Corporation and its
subsidiaries and Rickenbacker Holdings, Inc., a Delaware corporation, and its
subsidiaries may sell, lease or otherwise transfer real estate assets or
interests therein in arm's-length transactions.
SECTION 5.16. Use of Proceeds. The proceeds of the Loans made under
this Agreement and the Letters of Credit will be used by the Borrower solely for
the general corporate purposes of the Borrower and its Subsidiaries. None of
such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U.
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SECTION 5.17. Real Estate Development. None of the Borrower, the
Guarantor, or any of the Subsidiaries of the Borrower, or any subsidiaries of
such Subsidiaries, shall (a) engage in the business of real estate development
as its primary business, or (b) invest in or become a party to any real estate
joint venture, partnership or other joint enterprise that would be reflected on
a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries;
provided, however, that nothing contained herein shall limit or restrict the
ability of the Borrower, the Guarantor, or any of the Subsidiaries of the
Borrower, or any subsidiaries of such Subsidiaries, to contribute real estate
assets to any such joint venture, partnership or other joint enterprise, so long
as such contribution is the only obligation or duty (other than administrative
obligations or duties such as reporting requirements) of the Borrower, the
Guarantor, or any of the Subsidiaries of the Borrower, or any subsidiaries of
such Subsidiaries, related thereto.
ARTICLE 6: DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or any Reimbursement Obligation or shall fail to pay within three
days of the due date thereof any interest, fees or other amount payable
hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.7, 5.8, 5.9, 5.10, 5.11, 5.15 or 5.16;
(c) the Borrower shall fail to observe or perform any covenant
contained in Section 5.12, 5.13 or 5.14 for seven days after written
notice thereof has been given to the Borrower by the Agent at the request
of any Bank;
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a), (b) or (c) above) for 30 days after written notice thereof has been
given to the Borrower by the Agent at the request of any Bank;
(e) any representation, warranty, certification or statement made by
the Borrower or the Guarantor in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement
shall prove to have been incorrect in any material respect when made (or
deemed made);
(f) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Financial Obligations when due or within any
applicable grace period;
(g) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of
such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(h) the Guarantor's obligations hereunder shall at any time cease to
be in full force and effect or shall be declared null and void, or the
validity or enforceability thereof shall be contested by the Guarantor, or
the Guarantor shall deny it has any further liability or obligation
hereunder;
(i) the Borrower or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall admit in writing
its inability to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(j) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against
the Borrower or any Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
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(k) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or there shall occur a complete
or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $1,000,000;
(l) judgments or orders for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower or any Subsidiary and
such judgments or orders shall continue unsatisfied and unstayed for a
period of 30 days; or
(m) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Borrower; or,
during any period of 12 consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period shall cease to
constitute a majority of the board of directors of the Borrower; then, and
in every such event, the Agent shall (i) if requested by Banks having more
than 50% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding more than 50% of the aggregate principal amount
of the Loans, by notice to the Borrower declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower;
provided that in the case of any of the Events of Default specified in
clause (i) or (j) above with respect to the Borrower or the Guarantor,
without any notice to the Borrower, or any other act by the Agent or the
Banks, the Commitments shall thereupon terminate and the Loans (together
with accrued interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
SECTION 6.2. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.1(c) or 6.1(d) promptly upon being requested to do so
by any Bank and shall thereupon notify all the Banks thereof.
SECTION 6.3. Cash Cover. If an Event of Default shall have occurred
and be continuing, the Borrower shall, if requested by the Agent upon the
instruction of Banks having more than 50% in aggregate amount of the Letter of
Credit Exposures, pay to the Agent an amount in immediately available funds
(which funds shall be held as collateral pursuant to arrangements satisfactory
to the Agent) equal to the aggregate amount then available or thereafter to
become available for drawing under all Letters of Credit then outstanding;
provided that, upon the occurrence of any Event of Default specified in Section
6.1(i) or 6.1(j) with respect to the Borrower or the Guarantor, the Borrower
shall pay such amount forthwith without any notice or demand or any other act by
the Agent or the Banks.
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ARTICLE 7: THE AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.2. Agent and Affiliates. Bank One, N.A. shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Agent, and Bank
One, N.A. and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Agent.
SECTION 7.3. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
SECTION 7.4. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks, or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder, (ii) the performance or observance of
any of the covenants or agreements of the Borrower, (iii) the satisfaction of
any condition specified in Article 3, except receipt of items required to be
delivered to the Agent, or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex, facsimile transmission or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower or the Guarantor) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
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SECTION 7.8. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent; provided
that if such successor Agent is not a Bank, such appointment shall be subject to
the consent of the Borrower, which consent shall not be unreasonably withheld.
If no successor Agent shall have been so appointed by the Required Banks, and
shall have accepted such appointment, within 30 days after the retiring Agent
gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000; provided
that if such successor Agent is not a Bank, such appointment shall be subject to
the consent of the Borrower, which consent shall not be unreasonably withheld.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.9. Agent's Fee. The Borrower shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Agent.
ARTICLE 8: CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Agent is advised that deposits in dollars (in the applicable
amounts) are not appearing on the Screen or are not being offered to the
Agent in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the
Commitments advise the Agent that the Adjusted London Interbank Offered
Rate as determined by the Agent will not adequately and fairly reflect the
cost to such Banks of funding their Eurodollar Loans for such Interest
Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Eurodollar Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans shall be suspended, and (ii) each outstanding Eurodollar Loan
shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Agent at
least two Domestic Business Days before the date of any Eurodollar Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.2. Illegality. If, on or after July 1, 1998, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Eurodollar Lending office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Eurodollar
Lending Office) to make, maintain or fund its Eurodollar Loans and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Eurodollar Loans, or to continue or
convert outstanding Loans as or into Eurodollar Loans, shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Eurodollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such notice is given, each Eurodollar
Loan of such Bank then outstanding shall be converted to a Base Rate Loan either
(a) on the last day of the then current Interest Period applicable to such
Eurodollar Loan if such Bank may lawfully continue to maintain and fund such
Loan to such day, or (b) immediately if such Bank shall determine that it may
not lawfully continue to maintain and fund such Loan to such day.
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SECTION 8.3. Increased Cost and Reduced Return. (a) If on or after
July 1, 1998, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
with respect to any Eurodollar Loan any such requirement included in an
applicable Eurodollar Reserve Percentage), special deposit, insurance assessment
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market any other
condition affecting its Eurodollar Loans, its Note or its obligation to make
Eurodollar Loans or its obligations in respect of Letters of Credit and the
result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Eurodollar Loan or of
issuing or participating in any Letter of Credit, or to reduce the amount of any
sum received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after July 1, 1998, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.4. Taxes. (a) For the purposes of this Section 8.4,
the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower or the Guarantor, as the case may be, pursuant to this Agreement or
under any Note, and all liabilities with respect thereto, excluding (i) in the
case of each Bank and the Agent, taxes imposed on its income, and franchise or
similar taxes imposed on it, by a jurisdiction under the laws of which such Bank
or the Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located, and (ii) in the case of each Bank, any
United States withholding tax imposed on such payments but only to the extent
that such Bank is subject to United States withholding tax at the time such Bank
first becomes a party to this Agreement.
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"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note.
(b) Any and all payments by the Borrower or the Guarantor to or for
the account of any Bank or the Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
or the Guarantor shall be required by law to deduct any Taxes or Other Taxes
from any such payments, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) such Bank or the Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower or the Guarantor, as the case may be,
shall make such deductions, (iii) the Borrower or the Guarantor, as the case may
be, shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) the Borrower or the
Guarantor, as the case may be, shall furnish to the Agent, at its address
referred to in Section 10.1, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be paid within 15 days after such
Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower and the Agent with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which exempts such Bank from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Bank or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade or
business in the United States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower or the Agent with the appropriate form pursuant to Section
8.4(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which such form originally was required to
be provided), such Bank shall not be entitled to indemnification under Section
8.4(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower or the Guarantor is required to pay additional
amounts to or for the account of any Bank pursuant to this Section, then such
Bank will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Eurodollar
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Eurodollar Loans has been suspended pursuant to Section 8.2, or (ii) any
Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
Eurodollar Loans and the Borrower shall, by at least five Eurodollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer exist:
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(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) Eurodollar Loans shall instead be Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other Banks);
and
(b) after each of its Eurodollar Loans has been repaid (or converted
to a Base Rate Loan), all payments of principal which would otherwise be
applied to repay such Eurodollar Loans shall be applied to repay its Base
Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a Eurodollar Loan on the first day of the next succeeding
Interest Period applicable to the related Eurodollar Loans of the other Banks.
ARTICLE 9: GUARANTY
SECTION 9.1. The Guaranty. The Guarantor hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Guarantor shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.2. Guaranty Unconditional. The obligations of the
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this Agreement
or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under this
Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of the Borrower or the Guarantor, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or its
assets or any resulting release or discharge of any obligation of the
Borrower contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Borrower, the Agent, any Bank
or any other Person, whether in connection herewith or with any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Borrower of the principal of or interest on any Note or any other amount
payable by the Borrower under this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder.
SECTION 9.3. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. The Guarantor's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated, there shall
be no outstanding Letters of Credit and the principal of and interest on the
Notes and all other amounts payable by the Borrower under this Agreement shall
have been paid in full. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Borrower under this
Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantor's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
30
35
SECTION 9.4. Waiver by the Guarantor. The Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Borrower or any other Person. The Guarantor
agrees and acknowledges that the terms and provisions of this Agreement, any
Note and any other agreement, document or instrument executed in connection with
any of the foregoing may be modified and amended without prior notice to or the
consent of the Guarantor, all such notices being hereby waived by the Guarantor,
for itself and its successors and assigns.
SECTION 9.5. Subornation. Upon making any payment with respect to
the obligations of the Borrower hereunder, the Guarantor shall be subrogated to
the rights of the payee against the Borrower with respect to such payment;
provided that the Guarantor shall not enforce any payment by way of subrogation
against the Borrower so long as (i) any Bank has any Commitment or Letter of
Credit Exposure hereunder, or (ii) any amount payable by the Borrower hereunder
remains unpaid.
SECTION 9.6. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or any Note
is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Guarantor hereunder forthwith on demand by
the Agent made at the request of the requisite proportion of the Banks specified
in Article 6.
SECTION 9.7. Limit of Liability. The obligations of the Guarantor
hereunder shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law.
ARTICLE 10: MISCELLANEOUS
SECTION 10.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (a) in the case of the Borrower, the Guarantor or the Agent, at its
address, facsimile number or telex number set forth on the signature pages
hereof, (b) in the case of any Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire, or (c) in the case of any
party, such other address, facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent or the
Issuing Bank under Article 2 or Article 8 shall not be effective until received.
SECTION 10.2. No Waivers. No failure or delay by the Agent or any
Bank or the Issuing Bank in exercising any right, power or privilege hereunder
or under any Note shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
31
36
SECTION 10.3. Expenses; Indemnification. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder,
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent and each Bank, including (without duplication) the fees
and disbursements of outside counsel and the allocated cost of inside counsel,
in connection with such Event of Default and collection, bankruptcy, insolvency
and other enforcement proceedings resulting therefrom. The Borrower shall
indemnify each Bank against any transfer taxes, documentary taxes, assessments
or charges made by any governmental authority by reason of the execution and
delivery of this Agreement or any Note.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of the Loans or the Letters of Credit; provided that no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 10.4. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to its Note or its share of any Reimbursement Obligation which is
greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to its Note or its
share of such Reimbursement Obligation, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes and the
Reimbursement Obligations held by or for the account of the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes and the
Reimbursement Obligations held by or for the account of the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower or the Guarantor other than its indebtedness
hereunder. Each of the Borrower and the Guarantor agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Note or Reimbursement Obligation, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower or the
Guarantor in the amount of such participation.
SECTION 10.5. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent or the Issuing Bank is affected
thereby, by the Agent or the Issuing Bank, as relevant); provided that no such
amendment or waiver shall, unless signed by all the Banks, (i) increase or
decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or the amount of any
Reimbursement Obligation or any interest thereon or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any Reimbursement Obligation or any interest thereon or any fees hereunder or
for the termination of any Commitment or (except as expressly provided in
Section 2.14) the expiry date of any Letter of Credit, (iv) release the
Guarantor from its obligations hereunder, or (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes and/or
Letter of Credit Exposures, or the number of Banks, which shall be required for
the Banks or any of them to take any action under this Section or any other
provision of this Agreement; provided, further, that any amendment or waiver of
any provision of Article 9 shall not be effective unless also signed by the
Guarantor.
32
37
SECTION 10.6. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all the Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
all or any part of its Loans and Letter of Credit Exposure. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrower,
the Issuing Bank and the Agent shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii) or
(iv) of Section 10.5 without the consent of the Participant. The Borrower agrees
that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
initial Commitment of not less than $5,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit D hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrower
(which shall not be unreasonably withheld), the Agent and the Issuing Bank;
provided that if an Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment, no such consent of the Borrower shall
be required. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or 8.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
33
38
SECTION 10.7. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.8. Governing Law. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the State of Ohio.
SECTION 10.9. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 10.10. WAIVER OF JURY TRIAL. AGENT, EACH BANK, BORROWER AND
GUARANTOR, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM. NONE OF AGENT, ANY BANK,
BORROWER OR GUARANTOR SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY OF AGENT,
ANY BANK, BORROWER OR GUARANTOR, EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL
OF THEM.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE XXXXXX CORPORATION
By By
----------------------------------- -----------------------------------
Title: Title:
---------------------------- ----------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
XXXXXX CONSTRUCTION COMPANY
By By
----------------------------------- -----------------------------------
Title: Title:
---------------------------- ----------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
34
39
Commitments
-----------
$15,000,000 BANK OF NEW YORK
By
------------------------------------------
Title:
------------------------------------
$15,000,000 XXXXXX TRUST AND SAVINGS BANK
By
------------------------------------------
Title:
------------------------------------
$15,000,000 BANK ONE, N.A.
By
------------------------------------------
Title:
------------------------------------
====================
$45,000,000 Total Commitments
BANK ONE, N.A., as Agent
By
---------------------------------
Title: Vice President
35
40
PRICING SCHEDULE
Each of "Eurodollar Margin", "Base Rate Margin", "Commitment Fee
Rate" and "LC Fee Rate" means, for any day, the rate set forth below in the row
opposite such term and in the column corresponding to the "Pricing Level" that
applies for such day:
--------------------------------------------------------------------------------
Level I Level II Level III Level IV
--------------------------------------------------------------------------------
Eurodollar
Margin 1.375% 1.50% 1.625% 1.75%
--------------------------------------------------------------------------------
Base Rate
Margin 0% 0% 0% 0.25%
--------------------------------------------------------------------------------
Commitment Fee
Rate 0.25% 0.375 0.375% 0.50%
--------------------------------------------------------------------------------
LC Fee
Rate 1.375% 1.50% 1.625% 1.75%
--------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the
following meanings:
"Level I Pricing" applies for any day if the Fixed Charge Ratio for
the period of four consecutive Fiscal Quarters ended at the end of the most
recent Fiscal Quarter for which a compliance certificate has been (or should
have been) delivered pursuant to Section 5.1(g) is greater than or equal to 2.5
to 1 and Consolidated Adjusted Net Worth as of the end of such most recent
Fiscal Quarter is greater than or equal to $100,000,000.
"Level II Pricing" applies for any day if Level I Pricing does not
apply, and the Fixed Charge Ratio for the period of four consecutive Fiscal
Quarters ended at the end of the most recent Fiscal Quarter for which a
compliance certificate has been (or should have been) delivered pursuant to
Section 5.1(g) is greater than or equal to 2.2 to 1 and Consolidated Adjusted
Net Worth as of the end of such most recent Fiscal Quarter is greater than or
equal to $85,000,000.
"Level III Pricing" applies for any day if Level I Pricing and Level
II Pricing do not apply, and the Fixed Charge Ratio for the period of four
consecutive Fiscal Quarters ended at the end of the most recent Fiscal Quarter
for which a compliance certificate has been (or should have been) delivered
pursuant to Section 5.1(g) is greater than or equal to 1.9 to 1 and Consolidated
Adjusted Net Worth as of the end of such most recent Fiscal Quarter is greater
than or equal to $75,000,000.
"Level IV Pricing" applies for any day if Level I Pricing, Level II
Pricing and Level III Pricing do not apply, and the Fixed Charge Ratio for the
period of four consecutive Fiscal Quarters ended at the end of the most recent
Fiscal Quarter for which a compliance certificate has been (or should have been)
delivered pursuant to Section 5.1(g) is greater than or equal to 1.6 to 1 and
Consolidated Adjusted Net Worth as of the end of such most recent Fiscal Quarter
is greater than or equal to $65,000,000. In any event, Level IV Pricing shall
apply if Level I Pricing, Level II Pricing and Level III Pricing do not apply.
"Pricing Level" refers to the determination of which Level I
Pricing, Level II Pricing, Level III Pricing, or Level IV Pricing applies for
any day.
00
XXXXXXX X
XXXX
Xxx Xxxx, Xxx Xxxx
_____________ __, 199_
For value received, The Xxxxxx Corporation, a Delaware corporation
(the "Borrower"), promises to pay to the order of _____________________ (the
"Bank"), for the account of its Applicable Lending Office, on the Termination
Date the unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Bank One, N.A.,
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
All Loans made by the Bank, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of July __, 1998, by and among The Xxxxxx Corporation, Xxxxxx
Construction Company, the Banks parties thereto and Bank One, N.A., as Agent (as
the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
The payment in full of the principal of and interest on this Note
has been unconditionally guaranteed by Xxxxxx Construction Company.
The Xxxxxx Corporation
By
----------------------------------------
Name:
Title:
42
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount Amount of
of Principal
Date Loan Type Repaid Notation Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
43
EXHIBIT B
[LETTERHEAD]
July __, 1998
To the Banks and the Agent
Referred to Below
c/o Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Dear Sirs:
We have acted as counsel for The Xxxxxx Corporation (the "Borrower")
and Xxxxxx Construction Company (the "Guarantor") in connection with the Credit
Agreement dated as of July __, 1998 (the "Credit Agreement") by and among the
Borrower, the Guarantor, the banks parties thereto and Bank One, N.A., as Agent.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the request of our clients pursuant to
Section 3.1(d) of the Credit Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Based on the foregoing, we are of the opinion that:
1. Each of the Borrower and the Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of its state
of incorporation and has all corporate powers required to carry on its business
as now conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes and by the Guarantor of the Credit Agreement are
within their respective corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or the Guarantor or
of any agreement, judgment, injunction, order, decree or other instrument of
which we are aware binding upon the Borrower or any of its Subsidiaries or
result in the creation or imposition of any Lien under any agreement of which we
are aware on any asset of the Borrower or any of its Subsidiaries.
44
To the Banks and the Agent 2 July __, 1998
3. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Guarantor, and the Notes constitute valid and binding
obligations of the Borrower, in each case enforceable against the Borrower or
the Guarantor, as the case may be, in accordance with their respective terms
except as the same may be limited by bankruptcy, insolvency, fraudulent
conveyance, or similar laws affecting creditors' rights generally and by general
principles of equity.
4. There is no action, suit or proceeding of which we are aware
pending against, or to the best of our knowledge threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which in any manner
draws into question the validity of the Credit Agreement or the Notes.
Very truly yours,
45
EXHIBIT C
[LETTERHEAD]
August 14, 1998
To the Banks and the Agent
Referred to Below
c/o Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Dear Sirs:
I am General Counsel of The Xxxxxx Corporation, a Delaware corporation (the
"Borrower"), and Xxxxxx Construction Company, a New York corporation (the
"Guarantor").
I have examined the Credit Agreement dated as of August 14, 1998 (the "Credit
Agreement") by and among the Borrower, Guarantor, the banks listed on the
signature pages thereof and Bank One, N.A., as Agent, as well as originals or
copies, certified or otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public official and other instruments and
have conducted such other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion. Terms defined in the Credit
Agreement are used herein as therein defined.
Upon the basis of the foregoing, I am of the opinion that:
1. Each of the Borrower and the Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the state of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
2. The execution, delivery and performance by the Borrower and the Guarantor
of the Credit Agreement and by the Borrower of the Notes do not
contravene, or constitute a default under, any provision of any agreement,
judgment, injunction, order, decree or other instrument of which I am
aware binding upon the Borrower or the Guarantor or result in the creation
or imposition of any Lien under any agreement of which I am aware on any
asset of the Borrower or any of its Subsidiaries.
3. There is no action, suit or proceeding of which I am aware pending
against, or to the best of my knowledge threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official, in which there
is a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Credit Agreement or the Notes.
The Company is, however, engaged in routine litigation consistent with
that of prior years, the cost of which has a material impact on the
Borrower's earnings and which if the Borrower and its Subsidiaries were
consistently unsuccessful would result in adverse decisions which would
materially affect their results of operations.
Very truly yours,
46
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ____________, 19___ among
(the "Assignor"), (the "Assignee"), THE XXXXXX CORPORATION
(the "Borrower") and BANK ONE, N.A., as Agent (the "Agent").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of August 14, 1998 (the "Credit
Agreement") by and among the Borrower, Xxxxxx Construction Company, as
Guarantor, the Assignor and the other Banks party thereto, as Banks and the
Agent;
WHEREAS, as provided under the Amended Credit Agreement, the
Assignor has a Commitment to make Loans to the Borrower and participate in
Letters of Credit in an aggregate principal amount at any time outstanding not
to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the
Amended Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;
WHEREAS, the Assignor's share of the total amount available for
drawing under Letters of Credit outstanding at the date hereof is $__________;
and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Amended Credit Agreement in respect of a
portion of its Commitment thereunder in an amount equal to $__________ (the
"Assigned Amount"), together with a corresponding portion of its outstanding
Loans and Letter of Credit Exposure, and the Assignee proposes to accept
assignment of such rights and assume the corresponding obligations from the
Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Loans made by, and Letter of Credit Exposure of, the Assignor outstanding at the
date hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee, [the Borrower, the Issuing Bank and the Agent] and the payment of the
amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Bank under the Credit Agreement with a Commitment
in an amount equal to the Assigned Amount, and (ii) the Commitment of the
Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(1) It is
understood that commitment and/or letter of credit fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the
----------
(1) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
47
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. Consent of the Borrower, the Agent and the Issuing Bank.
This Agreement is conditioned upon the consent of the Borrower, the Agent and
the Issuing Bank pursuant to Section 10.6(c) of the Credit Agreement. The
execution of this Agreement by the Borrower, the Agent and the Issuing Bank is
evidence of this consent. Pursuant to Section 10.6(c), the Borrower agrees to
execute and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower or the Guarantor, or the validity and enforceability of the obligations
of the Borrower or the Guarantor in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Ohio.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
By
----------------------------------------
Name:
Title:
By
----------------------------------------
Name:
Title:
THE XXXXXX CORPORATION
By
----------------------------------------
Name:
Title:
BANK ONE, N.A., as Agent
By
----------------------------------------
Name:
Title:
BANK ONE, N.A., as Issuing Bank
By
----------------------------------------
Name:
Title:
48
EXHIBIT E
EXTENSION AGREEMENT
The Xxxxxx Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Gentlemen:
The undersigned hereby agree to extend, effective August 1, _____,
the term of the Credit Agreement dated as of August 14, 1998, by and among The
Xxxxxx Corporation, Xxxxxx Construction Corporation, the Banks party thereto and
Bank One, N.A., as Agent (the "Credit Agreement") for one year to August 1,
200__. Terms defined in the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the laws of the State of Ohio.
BANK ONE, N.A., as Agent
By
------------------------------------------
Title:
------------------------------------
[BANK]
By
----------------------------------------
Title:
----------------------------------
[BANK]
By
----------------------------------------
Title:
----------------------------------
[BANK]
By
----------------------------------------
Title:
----------------------------------
[BANK]
By
----------------------------------------
Title:
----------------------------------
[BANK]
By
----------------------------------------
Title:
----------------------------------
Agreed and accepted:
THE XXXXXX CORPORATION
49
By
----------------------------------------
Title:
----------------------------------
By
----------------------------------------
Title:
----------------------------------
XXXXXX CONSTRUCTION COMPANY
By
----------------------------------------
Title:
----------------------------------
By
----------------------------------------
Title:
----------------------------------
BANK ONE, N.A., as Agent
By
----------------------------------------
Title:
----------------------------------
50
SCHEDULE A
Subsidiaries of the Borrower
Xxxxxx Construction Company
Xxxxxx International Industries, Inc.
Ameristone, Inc.
Mideast Construction Services, Inc.
Universal Construction Company Inc.
Trans-Con of Delaware Inc.
Xxxxxx Co-Generation Investment Corporation
Rickenbacker Holdings, Inc.
Rickenbacker Development Corporation
Xxxxxx Energy Services, Inc.
Xxxxxx Investment Corporation
Burwharf Corporation
TDC of Texas, Inc. (formerly B-F-W Construction Co., Inc.)
51
Exhibit 10(f)
FIRST AMENDMENT TO CREDIT AGREEMENT dated as of October 15, 1998 by
and among THE XXXXXX CORPORATION, as Borrower, XXXXXX CONSTRUCTION COMPANY, as
Guarantor, the BANKS party hereto and BANK ONE, N.A., as Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto entered into the Credit Agreement having a
stated effective date of August 14, 1998 (the "Credit Agreement"), and the
parties desire to designate the effective date of the Credit Agreement as
September 21, 1998, and to otherwise amend the Credit Agreement as hereinafter
set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings for such terms set forth in the Credit Agreement.
2. Effective Date. The Effective Date of the Credit Agreement is hereby
deemed to be for all purposes, and shall be, September 21, 1998. All references
in the Credit Agreement to the date of "August 14, 1998" as the Effective Date
are hereby deleted, and substituted with the date of "September 21, 1998".
3. Amendment of Section 3. Notwithstanding anything contained in Section
3.1(b) to the contrary, the parties hereto agree and acknowledge that the
execution and delivery of the Note shall not be a condition precedent to the
effectiveness of the Credit Agreement, and that the Credit Agreement was and is
effective as of the date of September 21, 1998. The parties hereto further agree
and acknowledge that the execution and delivery of the Note by the Borrower in
accordance with the terms and conditions set forth in the Credit Agreement shall
be a condition precedent to any obligation of the Banks to make a Loan on the
occasion of any Borrowing. Finally, the parties hereto agree that the reference
to the date of "July 1, 1998" in the first line of Section 3.2(a) on page 22 is
hereby deleted, and replaced with the date of "September 21, 1998".
4. Confirmation and Ratification. Except as specifically modified and
amended pursuant to the terms hereof, the Credit Agreement remains unchanged and
in full force and effect as written. The parties hereto hereby ratify and
confirm in all respects, as of the date hereof, all of the terms, conditions,
representations, warranties, covenants and provisions contained therein, as
modified and amended hereby, and the Borrower and Guarantor each hereby confirms
and ratifies in all respects all of their respective obligations to the Banks
and the Agent thereunder.
52
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE XXXXXX CORPORATION
By By
----------------------------------- -----------------------------------
Title: Title:
---------------------------- ----------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
XXXXXX CONSTRUCTION COMPANY
By By
----------------------------------- -----------------------------------
Title: Title:
---------------------------- ----------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
BANK OF NEW YORK
By
-----------------------------------
Title:
-----------------------------
XXXXXX TRUST AND SAVINGS BANK
By
-----------------------------------
Title:
-----------------------------
BANK ONE, N.A.
By
-----------------------------------
Title: Vice President
BANK ONE, N.A., as Agent
By
-----------------------------------
Title: Vice President
