TERM LOAN AND LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
Dated as of Xxxxx 00, 0000
XXXXX CORPORATION, a Delaware corporation (the "Borrower"), the
Banks (as hereinafter defined) and DEUTSCHE BANK AG, NEW YORK BRANCH ("Deutsche
Bank"), as agent (the "Agent") for the Banks (as hereinafter defined), agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accountants" means Deloitte & Touche LLP, or any successor thereto,
or such other firm or certified public accountants of recognized national
standing selected by the Borrower and satisfactory to the Required Banks.
"Acquisition" means any transaction consummated after the Effective
Date by which the Borrower or any Subsidiary (i) acquires any going
business or all or substantially all of the assets of any Person (or any
division thereof), whether through purchase of assets, merger,
consolidation or otherwise, or (ii) acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority
of the securities or equity interests of a Person having ordinary voting
power for the election of directors or comparable officials.
"Advance" means a Term Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 25% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agency Agreement" means the Fiscal Agency Agreement, dated as of
June 1, 1987, between the Borrower and Bankers Trust Company, pursuant to
which the
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Borrower issued $85,000,000 of its 6% Convertible Subordinated Debentures
due 2002 or the Fiscal Agency Agreement, dated as of October 15, 1986,
between the Borrower and Bankers Trust Company, pursuant to which the
Borrower issued $75,000,000 of its 5:% Convertible Subordinated Debentures
due 2002.
"Agent" has the meaning assigned to that term in the first paragraph
of this Agreement.
"Agent's Account" means the account of the Agent payable through the
Federal Reserve Bank of New York in favor of Deutsche Bank, New York
Branch, with its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
ABA # 026000780, Syndications Clearing Account, Account No. 100440240008,
Attention: Xxxx Xxxxx.
"Agreement" means this Term Loan and Letter of Credit and
Reimbursement Agreement, as the same may be amended, modified or
supplemented from time to time.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of a Base Rate Advance and such
Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
============================= ==============================
Public Debt Rating Applicable Margin for
S&P/Moody's Eurodollar Rate Advances
============================= ==============================
============================= ==============================
Level 1
A-/A3 or above .250%
============================= ==============================
Level 2
BBB+ or BBB/Baa1 or Baa2 .350%
============================= ==============================
Xxxxx 0
XXX-/Xxx0 .000%
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx 0
XXx/Xx0 or below .600%
============================= ==============================
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit D hereto.
"Available Amount" of the Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Banks" means the banks listed on the signature pages hereof and any
Eligible Assignee which becomes a party hereto pursuant to Section 8.07.
"Base Rate" means, for any day, a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times
be equal to the greater of:
(a) the rate of interest announced publicly by Deutsche Bank
in New York, New York, from time to time, as Deutsche Bank's prime
lending rate for unsecured commercial loans in Dollars to borrowers
located in the United States on such date; and
(b) 1/2 of one percent per annum above the Federal Funds Rate
for such day.
For purposes of this definition, the Deutsche Bank prime lending
rate is a reference rate and does not necessarily represent the lowest
rate or the best rate charged to any customer or the rate charged to any
commercial bank for interbank lending. Deutsche Bank may make commercial
loans or advances or conduct interbank lending at rates of interest at,
above or below its prime lending rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"Beneficiary" means Canadian Imperial Bank of Commerce or such other
beneficiary of the Letter of Credit (as may be agreed by the Borrower and
the Banks), which in any case shall be acting as agent for the holders of
the Palladium Securities and shall be as specified in the Notice of
Issuance.
"Borrower" has the meaning assigned to that term in the first
paragraph of this Agreement.
"Borrowing" means a borrowing consisting of Term Advances or Letter
of Credit Advances of the same Type made on the same day by the Banks.
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"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations thereunder, as from time to time in effect.
"Commitment" means a Term Commitment or a Letter of Credit
Commitment.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Bank in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Agent or such Bank from a source other than the Borrower.
"Consolidated" means the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidating" means the Borrower and its Subsidiaries taken
separately.
"Contingent Obligation", as applied to the Borrower and its
Consolidated Subsidiaries, means Indebtedness of others (a) which the
Borrower or any Consolidated Subsidiary has directly or indirectly
guaranteed, indorsed (other than for deposit or collection or in the
ordinary course of business), discounted with recourse, agreed
(contingently or otherwise) to purchase or repurchase or otherwise
acquire, or (b) with respect to which the Borrower or any Consolidated
Subsidiary has agreed contingently to supply or advance funds (whether by
way of loan, share purchase or capital contribution, through a commitment
to pay rent or to pay for Property or services regardless of dispossession
from such Property, the non-delivery of such Property or the
non-furnishing of such services, or otherwise), or (c) with respect to
which the Borrower or any Consolidated Subsidiary has otherwise become
directly or indirectly liable, provided, however, that "Contingent
Obligations" shall exclude any Indebtedness of others with respect to
which the Borrower or any Consolidated Subsidiary is obligated solely upon
the occurrence of a default by any Consolidated Subsidiary of its
covenants and undertakings under any contracts or agreements (except,
however, such Indebtedness of others shall not be excluded after the
occurrence of such default to the extent that the Borrower or any Material
Subsidiary has directly assumed or has otherwise become directly liable
for such Indebtedness of others as a result of the exercise of remedies in
connection with such default).
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"Convert", "Conversion" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.07 or 2.08.
"Current Assets" means the current assets of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP.
"Current Liabilities" means the current liabilities of the Borrower
and its Subsidiaries determined on a Consolidated basis in accordance with
GAAP.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Deutsche Bank" has the meaning assigned to that term in the first
paragraph of this Agreement.
"Dollars" and "$" and "US$" mean the lawful currency of the United
States of America.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Bank, or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Agent.
"Effective Date" means March 26, 1997.
"Eligible Assignee" means an assignee which is any bank, insurance
company or financial institution organized under the laws of the United
States or any state thereof acting for its own account, which (a) is
regularly engaged in the business of making loans in transactions similar
to this Agreement, (b) has a consolidated net worth in excess of
US$200,000,000, and (c) has been approved by (i) the Agent and (ii) unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower, such
approval not to be unreasonably withheld or delayed; provided, however
that no consent of the Borrower shall be required (x) in the event of a
change of ownership or control of the Borrower or (y) in the case of any
assignment to (1) another Bank hereunder, (2) a Bank Affiliate or (3) the
Federal Reserve; and provided, further, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
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"Environmental Law" means any and all federal, state and local laws
relating to the environment, the use, storage, transporting,
manufacturing, handling, discharge, disposal or recycling of hazardous
substances, materials or pollutants or industrial hygiene and including,
without limitation, (i) the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 USCA ' 9601 et seq.; (ii)
the Resource Conservation and Recovery Act of 1976, as amended, 42 USCA '
6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA '
2601 et seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA '
1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA ' 7401 et seq,;
(vi) the Hazardous Material Transportation Act, as amended, 49 USCA ' 1801
et seq. and (vii) all rules, regulations, judgments, decrees, injunctions
and restrictions thereunder and any analogous state law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" mans any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA are met with a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of the Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower
or any ERISA Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (f) the conditions for the imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA,
or the occurrence of any event or condition described in Section 4042 of
ERISA that
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constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Bank (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Bank as such Bank
may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, (a) an interest rate
per annum equal to the rate per annum that is set forth on page 3750 of
the Dow Xxxxx Telerate Service (or any other page that may replace such
page from time to time) as of 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for Dollar deposits having a
tenor equal to the duration of such Interest Period or (b) if a rate
cannot be determined pursuant to clause (a) above, a rate per annum equal
to the average (rounded upward to the nearest multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per annum at
which deposits in Dollars are offered by the principal office of each of
the Reference Banks as determined by the Agent (or, if the Agent is unable
to obtain information as to such rate from all of the Reference Banks, as
to each Reference Bank from which it has obtained such information) in
London, England to prime banks in the interbank market at 11:00 a.m. two
Business Days before the first day of such Interest Period and for a
period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"FinanceCo I" means Palladium Finance Corporation I, a Canadian
corporation.
"Financial Statements" has the meaning specified in Section 4.01(q).
8
"Fixed Charge Coverage Ratio" means the ratio of (a) the sum of
Operating Income, Interest Expense and Rent Expense to (b) the sum of
Interest Expense and Rent Expense, all on a Consolidated basis.
"GAAP" means generally accepted accounting principles as of the date
of any determination dependent thereupon, consistently applied.
"Governmental Body" means any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator.
"Indebtedness" means, without duplication, with respect to the
Borrower and its Subsidiaries, all (a) obligations in respect of borrowed
money or for the deferred purchase price of Property or services which
are, in accordance with GAAP, includable as a liability on a Consolidated
balance sheet, and (b) amounts representing the capitalization of rentals
in accordance with GAAP; provided, however, that "Indebtedness" shall
exclude any Indebtedness of any Subsidiary which, with respect to such
Subsidiary, is limited in recourse to the assets financed with the
proceeds of such Indebtedness and any Property or contract rights related
to such assets or revenues attributable thereto (except, however, such
Indebtedness of a Subsidiary shall not be excluded after the occurrence of
a default by such Subsidiary in the performance of its obligations under
any contract or agreement to the extent that the Borrower or any Material
Subsidiary has directly assumed or has otherwise become directly liable
for such Indebtedness pursuant to performance guarantees given by the
Borrower or such Material Subsidiary as a result of the exercise of
remedies in connection with such default).
"Information Memorandum" means the information memorandum dated
March 7, 1997 used by the Agent in connection with the syndication of the
Commitments.
"Initial Lending Date" means April 1, 1997.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Expense" means for any period, the sum of all interest
(adjusted to give effect to all interest rate swap, cap or other interest
rate hedging arrangements and fees and expenses paid in connection with
the same, all as determined in accordance with GAAP) paid or accrued in
respect of all Indebtedness for such period by the
9
Borrower and its Subsidiaries on a Consolidated basis, as determined in
accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of a Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
Borrower may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that ends
after the Maturity Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Joint Venture Subsidiary" means any Subsidiary of which the
Borrower or any Subsidiary of the Borrower, directly or indirectly, owns
or controls less than 80% of the outstanding Voting Stock.
10
"L/C Applicable Commission" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
============================== =============================
Public Debt Rating Applicable
S&P/Moody's Percentage
============================== =============================
============================== =============================
Level 1
A-/A3 or above .250%
============================== =============================
Level 2
BBB+ or BBB/Baa1 or Baa2 .350%
============================== =============================
Xxxxx 0
XXX-/Xxx0 .000%
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx 0
XXx/Xx0 or below .600%
============================== =============================
"L/C Cash Collateral Account" has the meaning specified in Section
6.02.
"L/C Related Documents" has the meaning specified in Section
2.03(c).
"Letter of Credit" means the single Letter of Credit to be severally
issued by the Banks pursuant to Section 2.01(b) in substantially the form
of Exhibit C hereto.
"Letter of Credit Advance" means an advance made by any Bank
pursuant to Section 2.03(b).
"Letter of Credit Commitment" means, with respect to any Bank at any
time, the amount set forth opposite such Bank's name on the signature
pages hereto under the caption "Letter of Credit Commitment" or, if such
Bank has entered into one or more Assignments and Acceptances, set forth
for such Bank in the Register maintained by the Agent pursuant to Section
8.07(c) as such Bank's "Letter of Credit Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.09(b).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title
retention agreement and any financing lease having substantially the same
economic effect as any of the foregoing.
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"Loan Documents" means this Agreement, the Notes and the Letter of
Credit, in each case as amended, supplemented or otherwise modified from
time to time.
"Loan Purchase Agreement" means the Loan Purchase Agreement, dated
as of January 31, 1997, as such agreement may be amended, supplemented or
otherwise modified from time to time, between the Borrower and
NationsBank, N.A., as agent for the lenders party to the Palladium Loan
Agreement, pursuant to which the Borrower has agreed to purchase the full
amount owing by Palladium under the Palladium Loan Agreement on or before
April 1, 1997.
"Margin Stock" means any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as
the same may be amended from time to time.
"Material Adverse Change" means a material adverse change in the
operations or financial condition of the Borrower and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on the
operations or financial condition of the Borrower and its Subsidiaries
taken as a whole.
"Material Subsidiary" means Xxxxx Energy; Xxxxx Services
Corporation, a Delaware corporation; Xxxxx Financial Services, Inc., a
Delaware corporation; any successor to any of the foregoing by merger,
consolidation, amalgamation, reorganization, recapitalization,
liquidation, or any similar transaction; and any other Subsidiary (other
than a Subsidiary whose assets are financed with debt which is limited in
recourse to such Subsidiary or to the assets being financed with the
proceeds of such debt and any Property or contract rights related to such
assets or revenues attributable thereto) which, at any time from September
20, 1993 to, but excluding, the Maturity Date, has a Shareholders' Equity
equal to or greater than US$60,000,000.
"Material Subsidiary Group" means, at any time, one or more
Subsidiaries (other than a Subsidiary whose assets are financed with debt
which is limited in recourse to such Subsidiary or to the assets being
financed with the proceeds of such debt and any Property or contract
rights related to such assets or revenues attributable thereto) which have
singly or in the aggregate a Shareholders' Equity equal to or greater than
US$60,000,000. For purposes of determining whether one of the events
described in Section 6.01(f) or 6.01(g) has occurred with respect to a
Material Subsidiary Group, the Shareholders' Equity of each Subsidiary as
of the most recent fiscal year-end of such Subsidiary with respect to
which one of such events has occurred and is continuing shall be
aggregated from September 20, 1993 to the Maturity Date.
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"Maturity Date" means April 1, 2000, the third anniversary of the
Initial Lending Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Note" means a promissory note of the Borrower payable to the order
of any Bank, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from the
Advance made by such Bank.
"Notice of Term Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Xxxxx Energy" means Xxxxx Energy, Inc., a Delaware corporation.
"Operating Income" means net income before income taxes and minority
interests of the Borrower and its Subsidiaries from continuing operations,
determined on a Consolidated basis in accordance with GAAP.
"Palladium" means Palladium Corporation, an Ontario corporation.
"Palladium Documents" means all agreements entered into in
connection with the Palladium Transaction, including without limitation,
the shareholder agreement to be entered into among Palladium, FinanceCo I
and the Beneficiary with respect to the Palladium Securities; the put
agreement to be entered into between the Borrower and the Beneficiary with
respect to the Palladium Loan Agreement and the Palladium Securities; the
debt put/call agreement to be entered among, Palladium, FinanceCo I, the
Borrower and the Beneficiary with respect to the Palladium Loan Agreement
and the Palladium Securities.
13
"Palladium Loan Agreement" means the Term Loan Agreement, dated as
of April 30, 1994, among Palladium, as Borrower, NationsBank, N.A., as
Agent, Issuing Bank and Bank, National Westminster Bank plc, as Co-Agent
and Bank, Banque Paribas, as Bank, The Fuji Bank, Limited, New York
Branch, as Bank, and Deutsche Bank AG, New York Branch, as Bank, as such
agreement has been and may be amended, supplemented or otherwise modified
from time to time.
"Palladium Securities" means the distressed preferred shares of
FinanceCo I issued to the Beneficiary in connection with the Palladium
Transaction.
"Palladium Transaction" means the transaction described in the
Revenue Ruling, insofar as such transaction relates to the Palladium Loan
Agreement and the distressed preferred share transactions related thereto.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means
(a) any Lien on any Property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the
acquisition cost or construction cost of such Property, to the
extent that such Lien does not extend to any other Property;
(b) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provision (in the opinion of
an authorized financial officer of the Borrower) shall have been
established on the books of the Borrower;
(c) statutory Liens of landlords and Liens securing claims of
contractors, subcontractors, suppliers of goods, materials,
equipment or services, or laborers or other like Liens arising in
the ordinary course of business for amounts not yet due or which are
being contested in good faith and with respect to which adequate
reserves or other appropriate provision (in the opinion of an
authorized financial officer of the Borrower) shall have been
established on the books of the Borrower;
(d) Liens (other than any Lien imposed by ERISA) incurred in
the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety bonds, appeal and release bonds, bids, leases,
government contracts, performance and return-of-money
14
bonds and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(e) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(f) Liens existing on any Property prior to the acquisition
thereof, or prior to the acquisition of the Person which owns such
Property, by the Borrower or any of its Subsidiaries, in each case
which Lien was not created in contemplation of such acquisition;
(g) Liens on any Property or contract rights related to such
Property and to revenues attributable thereto, in each case of a
Subsidiary where such Property or contract right is financed with
debt which is limited in recourse to such Subsidiary or to the
assets being financed with the proceeds of such debt and any
Property or contract rights related to such assets or revenues
attributable thereto;
(h) Liens on assets of a Subsidiary which operates primarily
as a finance company or a leasing company, including, but not
limited to Subsidiaries in the business of investing in securities
and/or financing for third parties, incurred in the ordinary course
of such leasing or financing business;
(i) any other Liens, up to an amount not to exceed 20% of the
Borrower's Shareholders' Equity, and
(j) extensions, renewals or replacements of any Lien referred
to in clauses (a) through (h) above, but only to the extent that (i)
the principal amount of the Indebtedness or obligation secured
thereby is not increased, and (ii) any such extension, renewal or
replacement is limited to the Property originally encumbered
thereby.
"Permitted Subsidiary Indebtedness" means all Indebtedness of
Subsidiaries which is includable as a liability on a Consolidated Balance
Sheet of the Borrower prepared in accordance with GAAP, provided, however,
that Permitted Subsidiary Indebtedness shall be limited to:
(a) Indebtedness of any Subsidiary existing on September 20,
1993 as set forth on Schedule 5.02(c);
15
(b) Indebtedness of any Subsidiary: (a) that is incurred by a
non-operating special purpose Subsidiary, (b) the payment of which
is guaranteed, directly or indirectly by the Borrower, and (c) the
proceeds of which are loaned by such Subsidiary to the Borrower (i)
on terms of subordination no less favorable to the Banks than the
subordination provisions set forth in Exhibit B to the Agency
Agreement (to the extent that such provisions are in favor of
holders of Senior Indebtedness as defined in the Agency Agreement)
as in effect on September 20, 1993 and without giving effect to any
amendments thereto which may detract or derogate from the rights of
the holders of Senior Indebtedness, or (ii) on other terms of
subordination satisfactory to the Banks in form and substance, and
which is immediately repaid upon the repayment of such loan by the
Borrower;
(c) Indebtedness of any Subsidiary that is secured by a
Permitted Lien;
(d) Unsecured, non-revolving Indebtedness of any Subsidiary
which is created in connection with the acquisition or construction
of Property for use in the ordinary course of the business of such
Subsidiary;
(e) Indebtedness of any Person existing at the time such
Person becomes a Subsidiary;
(f) Indebtedness of any Subsidiary arising out of a lease,
conditional sale or other, similar arrangement in respect of
Property used in the ordinary course of the business of such
Subsidiary;
(g) Any renewal, extension or refinancing of any Indebtedness
set forth in subparagraphs (a) through (f) above, except that, with
respect to any revolving Indebtedness included in subparagraph (e)
above of a Person that becomes a Subsidiary and is not a Joint
Venture Subsidiary, such revolving Indebtedness shall not be
maintained, renewed, extended or refinanced beyond six months from
the date of the acquisition of such Subsidiary; and
(h) Other Indebtedness of Subsidiaries not exceeding an
aggregate amount at any time outstanding of US$50,000,000.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
16
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Property" means all types of real, personal, tangible, intangible
or mixed property.
"Pro Rata Share" means, for any Bank, with respect to such Bank's
pro rata share of the Available Amount of the Letter of Credit, the
percentage so specified on the signature page of the Letter of Credit.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Xxxxx'x, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower. For purposes of the foregoing, (a) if only one of S&P and
Xxxxx'x shall have in effect a Public Debt Rating, the Applicable Margin
and the L/C Applicable Commission shall be determined by reference to the
available rating; (b) if neither S&P nor Xxxxx'x shall have in effect a
Public Debt Rating the Borrower and the Banks shall, in the 30 day period
immediately after such ratings shall cease to be in effect, negotiate in
good faith an acceptable, tiered replacement method of determining the
Applicable Margin and the L/C Applicable Commission, having due regard to
the Borrower's credit standing and financial condition and the prevailing
interest rate environment at such time, provided that if within such
period of time the Borrower and the Banks are unable to reach an
agreement, then the Applicable Margin and the L/C Applicable Commission
will be set in accordance with Level 4 under the definition of "Applicable
Margin" or "L/C Applicable Commission", as the case may be; (c) if the
ratings established by S&P and Xxxxx'x shall fall within different levels
and (i) such differential is only one level (including numerical modifiers
and (+) and (-) as levels), the Applicable Margin and the L/C Applicable
Commission shall be based upon the higher rating or (ii) such differential
is two or more levels (including numerical modifiers and (+) and (-) as
levels) the Applicable Margin and the L/C Applicable Commission shall be
based upon the midpoint of the ratings then in effect (or if there is no
midpoint rating, the highest of the intermediary ratings shall apply); (d)
if any rating established by S&P or Xxxxx'x shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Xxxxx'x shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Xxxxx'x, as the
case may be, shall refer to the then equivalent rating by S&P or Xxxxx'x,
as the case may be.
"Reference Banks" means Deutsche Bank, NationsBank, N.A and Bank of
Tokyo-Mitsubishi Trust Company.
"Register" has the meaning specified in Section 8.07(c).
17
"Rent Expense" means any expense of the Borrower and its
Subsidiaries on a Consolidated basis under leases which, pursuant to GAAP,
would be considered to be operating leases. "Rent Expense" shall not be
construed to include amounts based on or in respect of (i) contingent
factors (principally sales) in excess of minimum rentals under leases of
the Borrower or its Subsidiaries, (ii) certain payments, set forth on
Schedule 1.01, in connection with a waste-to-energy plant located in
Tulsa, Oklahoma and a hydroelectric plant located in New Martinsville,
West Virginia, and (iii) Rent Expense of the Borrower which is similar in
nature to the Rent Expense described in clause (ii) above and which the
Required Banks, at the request of the Borrower, have agreed to exclude.
"Replacement Bank" has the meaning specified in Section 2.14.
"Replacement Letter of Credit" has the meaning specified in Section
8.07(e).
"Reportable Event" means any event described in Section 4043(b) of
ERISA, other than an event (excluding an event described in Section
4043(b)(i) relating to tax disqualification) with respect to which the
30-day notice requirement has been waived.
"Required Banks" means at any time Banks owed or holding at least
66-2/3% of the sum of (a) the then aggregate unpaid principal amount of
the Advances owing to Banks at such time and (b) the aggregate Available
Amount of the Letter of Credit outstanding at such time, or, if no such
principal amount and no Letter of Credit are outstanding at such time,
Banks having at least 66-2/3% of the Commitments.
"Revenue Ruling" means the Revenue Ruling attached hereto as Exhibit
F and which was issued by Revenue Canada to Coopers & Xxxxxxx Chartered
Accountants on March 7, 1997 regarding the proposed transactions among the
Borrower, FinanceCo I, Palladium and the Beneficiary with respect to the
Palladium Securities and the Palladium Loan Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Shareholders' Equity" means all amounts which would, in conformity
with GAAP, be included under shareholders' equity on a Consolidated
balance sheet.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or
18
any ERISA Affiliate and no Person other than the Borrower and the ERISA
Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Stock" means any and all shares, interests, participations,
warrants or other equivalents (however designated) or corporate stock.
"Subordinated Indebtedness" means, at any time, the following
Indebtedness:
(a) the then outstanding principal amount of Indebtedness of
the Borrower evidenced by (i) the 6% Convertible Subordinated
Debentures Due 2002, and (ii) the 5:% Convertible Subordinated
Debentures Due 2002; and
(b) the principal amount of additional Indebtedness then
outstanding incurred after March 31, 1993 for which the Borrower is
directly or primarily obligated and the payment of which is, by the
terms thereof, subordinated to the obligations of the Borrower under
the Notes (i) by subordination provisions no less favorable to the
Banks than the subordination provisions set forth in Exhibit B to
the Agency Agreement (to the extent that such provisions are in
favor of holders of Senior Indebtedness as defined in the Agency
Agreement) as in effect on September 20, 1993 and without giving
effect to any amendments thereto which may detract or derogate from
the rights of the holders of Senior Indebtedness, or (ii) by other
subordination provisions satisfactory to the Banks in form and
substance.
"Subsidiary" means any corporation, association, partnership, joint
venture, or other business entity of which the Borrower or any Subsidiary
of the Borrower, directly or indirectly, owns or controls more than 50% of
outstanding Stock having ordinary voting power to elect a majority of the
board of directors or similar managing body, irrespective of whether a
class or classes shall or might have voting power upon the occurrence of
any contingency.
"Term Advance" means an advance by a Bank to the Borrower pursuant
to Section 2.01(a).
"Term Borrowing" means the borrowing consisting of the Term
Advances.
"Term Commitment" means, with respect to any Bank on the Initial
Lending Date, the amount set forth opposite such Bank's name on the
signature pages hereto under the caption "Term Commitment" or, if such
Bank has entered into one or more
19
Assignments and Acceptances, set forth for such Bank in the Register
maintained by the Agent pursuant to Section 8.07(c) as such Bank's "Term
Commitment".
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
ARTICLE II
AMOUNTS AND TERMS OF THE BORROWING
SECTION 2.01. Term Borrowing. (a) The Term Advances. Each Bank
severally agrees, on the request of the Borrower and on the terms and conditions
hereinafter set forth, to make a single Term Advance to the Borrower on the
Initial Lending Date in an aggregate amount not to exceed such Bank's Term
Commitment at such time. The Term Borrowing shall consist of Term Advances of
the same Type made on the Initial Lending Date by the Banks ratably according to
their respective Term Commitments. Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed except as provided in Section
2.01(b).
(b) Letter of Credit. Each Bank severally agrees, on the request of
the Borrower and the terms and conditions hereinafter set forth, to issue the
Letter of Credit to the Beneficiary for the account of the Borrower on either
(i) the Initial Lending Date or (ii) in the event that the Letter of Credit is
not issued on the Initial Lending Date, on any Business Day during the period
from the date immediately following the Term Borrowing until the second
anniversary of the Initial Lending Date; provided the Available Amount for the
Letter of Credit for which such Bank shall be obligated to honor draws shall not
exceed at any time such Bank's Letter of Credit Commitment. The Letter of Credit
shall be issued to the Beneficiary,
20
shall be non-transferable and shall support the payment of redemption payments
on the Palladium Securities and shall not have an expiration date later than the
Maturity Date.
(c) Termination of Commitments. Notwithstanding anything herein to
the contrary, if on the Initial Lending Date either (i) the Borrower has not
requested either a Term Borrowing or the issuance of the Letter of Credit or
(ii) the Borrower has made such a request but the conditions contained in
Article III hereof have not been met, then the Commitments of each Bank shall
terminate at the close of business on such date and no Bank shall have any
obligation to extend credit to the Borrower hereunder either in the form of an
Advance or a Letter of Credit.
(d) Limitation on Issuance of Letter of Credit. Notwithstanding
anything herein to the contrary, on the Initial Lending Date, the Borrower can
only select either a Term Borrowing or the issuance of a Letter of Credit, and
at no time shall both a Term Borrowing and a Letter of Credit be outstanding.
SECTION 2.02. Making the Term Borrowing. (a) The Term Borrowing
shall be made on notice, given not later than 11:00 A.M. (New York City time) on
or before March 26, 1997, the second Business Day prior to the Initial Lending
Date in the case of a Term Borrowing consisting of Eurodollar Rate Advances, or
on or before March 31, 1997, the first Business Day prior to the Initial Lending
Date in the case of a Term Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Bank prompt notice thereof by
telecopier or telex. The notice of the Term Borrowing (a "Notice of Term
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier or telex, in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) Type of Advances comprising the Term Borrowing, (ii)
aggregate amount of the Term Borrowing, and (iii) in the case of a Term
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Bank shall, before 11:00 A.M. (New York City time) on
the date of the Term Borrowing, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, such
Bank's ratable portion of the Term Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower at the Agent's
address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for the
Term Borrowing if the aggregate amount of the Term Borrowing is less than
US$5,000,000 or if the obligation of the Banks to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.07 or 2.11.
(c) The Notice of Term Borrowing shall be irrevocable and binding on
the Borrower. In the event that the related Notice of Term Borrowing specifies
that the Term Borrowing be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each
21
Bank against any loss, cost or expense incurred by such Bank as a result of any
failure to fulfill on or before the date specified in the Notice of Term
Borrowing for the Term Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss, cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund the Term Advance to be made by such Bank as part of the Term
Borrowing when such Term Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of the Term Borrowing that such Bank will not make available to the
Agent such Bank's ratable portion of the Term Borrowing, the Agent may assume
that such Bank has made such portion available to the Agent on the date of the
Term Borrowing in accordance with subsection (a) of this Section 2.02 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 ratable portion 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, the interest rate
applicable at the time to Term Advances comprising the Term Borrowing 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 Term Advance as part of the Term Borrowing for purposes of this
Agreement.
(e) The failure of any Bank to make the Term Advance to be made by
it as part of the Term Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Term Advance on the date of the Term
Borrowing, but no Bank shall be responsible for the failure of any other Bank to
make the Term Advance to be made by such other Bank on the date of the Term
Borrowing.
SECTION 2.03. Issuance of and Drawing Under the Letter of Credit.
(a) Request for Issuance. The Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (New York City time) (i) in the case that the
Letter of Credit is to be issued on the Initial Lending Date, on or before March
26, 1997, the second Business Day prior to the date of the proposed issuance of
the Letter of Credit or (ii) in any other case, on or before the fifth Business
Day prior to the date of the proposed issuance of the Letter of Credit, by the
Borrower to the Agent, which shall give to each Bank prompt notice thereof by
telecopier or telex. The notice of issuance of the Letter of Credit (the "Notice
of Issuance") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B-2 hereto, specifying
therein the requested (A) name and address of the Beneficiary, (B) date of such
issuance (which shall be a Business Day), (C) Available Amount of the Letter of
Credit, and (D) expiration date of the Letter of Credit. The Agent will, upon
fulfillment of the applicable conditions set forth in Article III, make the
Letter of Credit available to the
22
Borrower at its office referred to in Section 8.02 or as otherwise agreed with
the Borrower in connection with such issuance.
(b) Drawing. In the event of a drawing under the Letter of Credit,
the Agent shall promptly deliver to each Bank a copy of the draft and drawing
certificate delivered by the Beneficiary in connection with such draw and notify
each Bank of the amount thereof and of such Bank's ratable portion of such
drawing. Each such Bank shall, before 11:00 A.M. (New York City time) on the
date on which such drawing is to be paid, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in immediately
available funds, such Bank's Pro Rata Share of the amount of such drawing. After
receipt of such funds, the Agent will make such funds available in accordance
with the terms of the Letter of Credit. The payment by the Banks of the draft
drawn under the Letter of Credit shall constitute for all purposes of this
Agreement the making by the Banks of Letter of Credit Advances, which initially
shall be Base Rate Advances, in the amount of such draft.
(c) Obligations Absolute. The obligations of the Borrower under this
Agreement relating to the Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances, and regardless of the use of proceeds of the drawing under the
Letter of Credit or any defense to payment related thereto:
(i) any lack of validity or enforceability of this Agreement, the
Letter of Credit or any other agreement or instrument relating thereto
(this Agreement and all of the other foregoing being, collectively, the
"L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary of the
Letter of Credit (or any Persons for whom any such beneficiary may be
acting), any Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any draft, statement or any other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
23
(v) payment by the Agent or any Bank under the Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of the Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(d) Compensation. (i) The Borrower shall pay to the Agent for the
account of each Bank a commission on such Bank's Pro Rata Share of the average
daily aggregate Available Amount of the Letter of Credit outstanding from time
to time at a rate per annum equal to the L/C Applicable Commission, payable in
arrears quarterly on the last Business Day of each March, June, September and
December, commencing on the first such date occurring after the issuance of the
Letter of Credit, and on the earliest to occur of the full drawing, expiration,
termination or cancellation of the Letter of Credit and the Maturity Date.
(ii) Upon the occurrence and during the continuance of an Event of
Default the commission payable by the Borrower pursuant to clause (i) above
shall increase to a rate per annum equal at all times to 2% per annum above the
L/C Applicable Commission required to be paid pursuant to clause (i) above.
(e) Failure to Make Letter of Credit Advances. The failure of any
Bank to make the Letter of Credit Advance to be made by it on the date specified
in Section 2.03(b) shall not relieve any other Bank of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Bank shall be
responsible for the failure of any other Bank to make the Letter of Credit
Advance to be made by such other Bank on such date.
SECTION 2.04. Agent's Fees. The Borrower shall pay to the Agent for
its own account such fees as may from time to time be agreed between the
Borrower and the Agent.
SECTION 2.05. Repayment. The Borrower shall repay to the Agent for
the ratable account of the Banks on the Maturity Date the aggregate principal
amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each Bank
from the date of
24
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable in arrears quarterly on the last
Business Day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or paid
in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar
Rate for such Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Bank, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) In the event that the
applicable page of the Dow Xxxxx Telerate Service from which the Eurodollar Rate
is to be determined is unavailable, each Reference Bank agrees to furnish to the
Agent timely information for the purpose of determining the Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely information
to the Agent for the purpose of determining any such interest rate, the Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. The Agent shall give prompt notice to the
Borrower and the Banks of the applicable interest rate determined by the Agent
for purposes of Section 2.06(a)(i) or (ii) and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest rate under
Section 2.06(a)(ii).
25
(b) If fewer than two Reference Banks furnish timely information to
the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
as provided in subsection (a) above,
(i) the Agent shall forthwith notify the Borrower and the Banks that
the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Banks to Convert Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Banks that the circumstances causing such suspension
no longer exist.
(c) If, with respect to any Eurodollar Rate Advances, the Required
Banks notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Banks of making,
funding or maintaining their respective Eurodollar Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and the Banks,
whereupon (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Banks that the circumstances causing such suspension no longer
exist.
(d) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Banks and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(e) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising a Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than US$5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(f) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Banks to Convert Advances into Eurodollar Rate
Advances shall be suspended.
26
SECTION 2.08. Optional Conversion of Advances. The Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.11, Convert all
Advances of one Type into Advances of the other Type; provided, however, that
any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
and any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be
in an amount not less than US$5,000,000. Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.09. Optional Prepayments; Reduction of Letter of Credit
Commitment. (a) The Borrower may, upon at least five (5) Business Days' notice
to the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Advances in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of US$5,000,000 or an integral multiple of
US$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Banks
in respect thereof pursuant to Section 8.04(c).
(b) Each Bank's Letter of Credit Commitment shall be permanently
reduced (i) on the Initial Lending Date, if a Term Advance is made on such date,
by an amount equal to such Bank's Term Commitment less such Bank's Term Advance
on such date and (ii) from time to time on the date of each prepayment of the
Term Advances pursuant to subsection (a) above, by the amount of any such
prepayment, unless such prepayment is a prepayment in full and on the date
thereof the Letter of Credit is issued pursuant to Section 2.01(b)(ii). Each
Bank's Letter of Credit Commitment shall also be reduced, from time to time, in
accordance with the terms of the Letter of Credit.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue
or issuing and maintaining the Letter of Credit (excluding for purposes of this
Section 2.10 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.13 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Bank
27
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower, subject to the provisions of clause (c) below,
shall from time to time, upon demand by such Bank, pay to the Agent for the
account of such Bank additional amounts sufficient to compensate such Bank for
such increased cost.
(b) If any Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and that the amount of such capital is
increased by or based upon the existence of such Bank's commitment to lend or to
issue the Letter of Credit hereunder and other commitments of this type or the
issuance or maintenance of the Letter of Credit (or similar contingent
obligations), then, upon demand by such Bank, the Borrower, subject to the
provisions of clause (c) below, shall pay to the Agent for the account of such
Bank, from time to time as specified by such Bank, additional amounts sufficient
to compensate such Bank or such corporation in the light of such circumstances,
to the extent that such Bank reasonably determines such increase in capital to
be allocable to the existence of such Bank's commitment to lend hereunder.
(c) Each Bank shall notify the Borrower of any event occurring after
the date of this Agreement entitling such Bank to compensation under clause (a)
or (b) above of this Section 2.10 as promptly as practicable, but in any event
within 60 days, after such Bank obtains actual knowledge thereof; provided that
if any Bank fails to give such notice within 60 days after it obtains actual
knowledge of such an event, such Bank shall with respect to compensation payable
pursuant to this Section 2.10 in respect of any costs resulting from such event,
only be entitled to payment under this Section 2.10 for costs incurred from and
after the date 60 days prior to the date that such Bank does give such notice.
Each Bank will furnish to the Borrower (with a copy to the Agent) a certificate
setting forth the basis and amount of each request by such Bank for compensation
under clause (a) or (b) of this Section 2.10. Such certificate shall be
conclusive and binding absent manifest error; provided that such determinations
and allocations are made in the same manner that such Bank makes such
determinations and allocations with respect to its borrowers similarly situated
to the Borrower.
(d) Any Bank claiming any additional amounts payable pursuant to
this Section 2.10 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other
28
governmental authority asserts that it is unlawful, for any Bank or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) such Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of such Bank to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Banks that the circumstances
causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in Dollars to the Agent at the Agent's Account in
same day funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or the Letter of Credit
commissions ratably (other than amounts payable pursuant to Section 2.10, 2.13
or 8.04(c)) to the Banks for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Bank to such Bank for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Bank assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of Letter of Credit commissions shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or commission are payable. Each determination by the Agent
of an interest rate or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or any Letter of
Credit commission, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
29
(d) 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 the Borrower shall not have so made such payment in full to the Agent,
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.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Bank's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) 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 shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Bank and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.13) imposed on or 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 made within 30 days from the date such Bank or the Agent (as the
30
case may be) makes written demand therefor. Such demand shall be accompanied by
a statement setting forth the calculations of any amounts payable pursuant to
this clause (c), which statement shall be deemed conclusive and binding for all
purposes, absent manifest error.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) 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 Initial Bank and on the date of the Assignment and
Acceptance pursuant to which it becomes a Bank in the case of each other Bank,
and from time to time thereafter as required by law (but only so long as such
Bank remains lawfully able to do so), shall provide each of the Agent and the
Borrower with two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Bank is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Bank provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Bank assignee becomes a party to this Agreement, the Bank
assignor was entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Bank assignee on
such date. If any form or document referred to in this subsection (e) requires
the disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof by Internal Revenue
Service form 1001 or 4224, that the Bank reasonably considers to be
confidential, the Bank shall give notice thereof to the Borrower and shall not
be obligated to include in such form or document such confidential information.
31
(f) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Bank shall not be
entitled to indemnification under Section 2.13(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure and the Agent shall be
entitled to withhold from any payments due hereunder to such Bank an amount
calculated at the withholding tax rate as shall be determined to be applicable
by the Agent; provided, however, that should a Bank become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as the Bank shall reasonably request to assist the Bank to
recover such Taxes.
(g) Any Bank claiming any additional amounts payable pursuant to
this Section 2.13 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.14. Replacement of Bank in Event of Adverse Condition. If
the Borrower becomes obligated to pay additional amounts to any Bank pursuant to
Section 2.10, or 2.13 or to Convert the Advances into Base Rate Advances
pursuant to Section 2.11 as a result of any condition described in such Sections
which is not generally applicable to all Banks, then, unless the Bank to which
such conditions apply has theretofore taken steps to remove or cure, and has
removed or cured, the conditions creating the cause for such obligation to pay
such additional amounts or to make such Conversion, the Borrower may, so long as
no Default shall have occurred and be continuing, designate another bank which
is an Eligible Assignee which is willing to purchase all rights and obligations
of such Bank and which is acceptable to the Agent, and if such Eligible Assignee
is not rated at least A- by S&P and A3 by Xxxxx'x, or such Eligible Assignee
following such purchase shall hold more than US$20,000,000 of the Letter of
Credit Commitments hereunder, the Beneficiary (such bank being herein called a
"Replacement Bank") to purchase for cash all of the rights and obligations of
such Bank under this Agreement and all of such Bank's rights hereunder, without
recourse to or warranty (other than title) by, or expense to, such Bank for a
purchase price equal to the outstanding principal amount of the Advances payable
to such Bank plus any accrued but unpaid interest on such Advances, any L/C
Applicable Commission, expense reimbursements and indemnities and other amounts
in respect of that Bank's Commitments and Advances hereunder. Such Bank shall
consummate such sale in accordance with such
32
terms within a reasonable time from the date the Borrower shall have designated
a Replacement Bank, and thereupon such Bank shall no longer be a party hereto or
have any obligations or rights hereunder (except rights which, pursuant to the
provisions of this Agreement, survive the termination of this Agreement and the
repayment of the Notes or the Advances), and the Replacement Bank shall succeed
to such obligations and rights.
SECTION 2.15. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in the Advances
owing to them as shall be necessary to cause such purchasing Bank to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and such Bank shall repay
to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.15 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
The obligations of the Banks to make either the Term Borrowing or issue the
Letter of Credit on the Initial Lending Date are subject to the satisfaction of
the following conditions precedent:
(a) There shall have occurred no material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries, taken as a
whole, since December 31, 1995.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a material adverse effect in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries, taken as a
whole other than the matters described on Schedule 3.01(b) hereto (the
"Disclosed
33
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note, any other Loan Document or the
consummation of the transactions contemplated hereby, and there shall have
been no adverse change in the status, or financial effect on the Borrower
or any of its Subsidiaries, of the Disclosed Litigation from that
described on Schedule 3.01(b) hereto.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Banks) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Banks
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(d) All loans made by the Banks to the Borrower shall be in full
compliance with Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be amended, supplemented or modified from
time to time.
(e) All information provided by or on behalf of the Borrower to the
Banks prior to their Commitments, including, without limitation,
information contained in the Information Memorandum, shall be true and
correct in all material respects.
(f) The Borrower shall have paid all accrued fees and expenses of
the Agent and the Banks (including the accrued fees and expenses of
counsel to the Agent).
(g) The following statements shall be true and the Agent shall have
received for the account of each Bank a certificate signed by a duly
authorized officer of the Borrower, dated the Initial Lending Date,
stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of such date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(h) The Agent shall have received on or before the Initial Lending
Date the following, each dated the Initial Lending Date, in form and
substance satisfactory to the Agent and (except for the Notes) in
sufficient copies for each Bank:
(i) The Notes to the order of the Banks, respectively,
(ii) Certified copies of the Borrower's Certificate of
Incorporation, together with a good standing certificate from the
Secretary of State of the
34
jurisdiction of its incorporation, each to be dated a recent date
prior to the Initial Lending Date;
(iii) Copies of the Borrower's By-Laws, certified as of the
Initial Lending Date by the Borrower's Secretary or an Assistant
Secretary;
(iv) Certified copies of the resolutions of the Board of
Directors of the Borrower approving each of the Loan Documents, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to each Loan Document;
(v) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign each of the Loan
Documents and the other documents to be delivered hereunder;
(vi) A favorable opinion of corporate counsel for the
Borrower, substantially in the form of Exhibit E hereto and as to
such other matters as any Bank through the Agent may reasonably
request; and
(vii) A favorable opinion of Shearman & Sterling, counsel for
the Agent, in form and substance satisfactory to the Agent.
SECTION 3.02. Conditions Precedent to the Borrowing. The obligation
of any Bank to make a Term Advance pursuant to Section 2.01 shall be subject to
the further condition precedent that on the Initial Lending Date, the Agent
shall have received irrevocable written instructions from the Borrower to
transfer the full amount of the Term Borrowing to NationsBank, N.A., as agent
for the lenders under the Palladium Loan Agreement, and NationsBank N.A., as
agent for the lenders under the Palladium Loan Agreement, shall have confirmed
in writing to the Agent that it has received irrevocable written instructions
from the Borrower and Palladium (in the case of clause (a) of this sentence)
which remain in effect to use the amounts to be transferred to it by the Agent
to either (a) repay all principal outstanding and interest, fees, expenses, and
all other amounts accrued and unpaid under such agreement and terminate all
commitments to extend credit and all credit extended thereunder or (b) pay the
purchase price for all principal outstanding and interest, fees, expenses, and
all other amounts accrued and unpaid under such agreement to the lenders party
to such agreement, and thereupon, to transfer all right, title and interest of
the lenders under such agreement to the Borrower.
SECTION 3.03. Conditions Precedent to Issuance of Letter of Credit.
The obligation of each Bank to issue the Letter of Credit for the account of the
Borrower, shall be
35
subject to the further conditions precedent that on the date of the issuance of
the Letter of Credit:
(a) The Agent shall have received sufficient copies for each Bank of
a certified (by the Borrower) copy of the final supplementary Revenue
Ruling delivered in connection with the Palladium Transaction, as well as
certified (by the Borrower) copies of each of the Palladium Documents,
together with a certificate signed by a duly authorized officer of the
Borrower, stating (i) that such final supplementary Revenue Ruling,
insofar as it relates to the Palladium Loan Agreement and the proposed
transactions in connection therewith, does not materially alter the nature
and scope of the Palladium Transaction described in the final Revenue
Ruling attached hereto as Exhibit F and (ii) that such certified copies of
the Palladium Documents, insofar as they relate to the Palladium Loan
Agreement and the proposed transactions in connection therewith, conform
in all material respects to the description thereof contained in the
Revenue Ruling (as supplemented);
(b) The following statements shall be true (and the giving of the
Notice of Issuance and the acceptance by the Borrower of the Letter of
Credit shall constitute a representation and warranty by the Borrower that
both on the date of such notice and on the date of the issuance such
statements are true):
(i) the representations and warranties contained in Section
4.01 are correct on and as of the date of the issuance of the Letter
of Credit, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result
from the issuance or from the application of the proceeds therefrom,
that constitutes a Default;
(c) In the event that the Borrower shall choose to cause the
issuance of the Letter of Credit pursuant to Section 2.01(b)(ii), the
Agent shall have received irrevocable payment instructions instructing it
to repay all Term Advances outstanding hereunder, together with sufficient
funds to make such payment; and
(d) The Agent shall have received such other ministerial approvals,
opinions or documents as any Bank through the Agent may reasonably
request.
SECTION 3.04. Determinations Under Section 3.01, 3.02 and 3.03. For
purposes of determining compliance with the conditions specified in Section
3.01, 3.02 and 3.03, each Bank shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Banks unless an officer of the Agent responsible for the
36
transactions contemplated by this Agreement shall have received notice from such
Bank prior to the Initial Lending Date or the date that the Borrower, by notice
to the Banks, designates as the proposed date of the issuance of the Letter of
Credit, specifying its objection thereto. The Agent shall promptly notify the
Banks of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower has only the Material Subsidiaries set forth on
Schedule 4.01(a) hereof. The shares of each Material Subsidiary are duly
authorized, validly issued, fully paid and nonassessable and are owned
free and clear of any Liens, except Permitted Liens.
(b) The Borrower and each Material Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation, has all requisite corporate power and
authority to own its Property and to carry on its business as now
conducted, and is in good standing and authorized to do business in each
jurisdiction in which there is a reasonable likelihood of a Material
Adverse Effect as a consequence of the failure to be so authorized.
(c) The Borrower has full corporate power and authority to enter
into, execute, deliver and carry out the terms of the Loan Documents, and
to make a Borrowing or cause the issuance of the Letter of Credit and to
incur the other obligations contemplated hereby, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper
and necessary corporate action and are not in violation of its restated
certificate of incorporation and by-laws.
(d) No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Body or any other
Person (except for those which have been obtained, made or given) is
required to authorize, or is required in connection with the execution,
delivery and performance of the Loan Documents or is required as a
condition to the validity or enforceability of the Loan Documents. No
provision of any applicable statute, law (including, without limitation,
any applicable usury or similar law), rule or regulation of any
Governmental Body will prevent the execution, delivery or performance of,
or affect the validity of, the Loan Documents.
37
(e) This Agreement constitutes, and the other Loan Documents, when
issued and delivered pursuant hereto for value received, will constitute,
the valid and legally binding obligations of the Borrower enforceable in
accordance with their respective terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally or
by general principles of equity.
(f) There are no actions, suits, arbitration proceedings or claims
pending or, to the knowledge of the Borrower, threatened against the
Borrower or any Subsidiary, or maintained by the Borrower or any
Subsidiary, at law or in equity, before any Governmental Body as to which
there is a reasonable likelihood of a Material Adverse Effect. There are
no proceedings pending or, to the knowledge of the Borrower, threatened
against the Borrower or any Subsidiary which call into question the
validity or enforceability of any of the Loan Documents.
(g) Neither the Borrower nor any Subsidiary is in default under any
mortgage, indenture, contract or agreement to which it is a party or by
which it or any of its Property is bound, as to which, taken as a whole,
there is a reasonable likelihood of a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents
will not constitute a default under, conflict with, require any consent
under (other than consents which have been obtained), or result in the
creation or imposition of, or obligation to create, any Lien upon the
Property of the Borrower or any Subsidiary pursuant to the terms of any
such mortgage, indenture, contract, agreement, judgment, decree or order,
as to which, if not obtained, there is a reasonable likelihood of a
Material Adverse Effect.
(h) Except as set forth on Schedule 4.01(h), the Borrower and each
Subsidiary has filed or caused to be filed all tax returns of any material
financial significance required to be filed and has paid, or has made
adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it which would
be material to the Borrower or any Material Subsidiary, and no tax Liens
that are not Permitted Liens have been filed. The charges, accruals and
reserves on the books of the Borrower and its consolidated Subsidiaries
with respect to all federal, state, local and other Taxes are, to the best
knowledge of the Borrower, adequate, and the Borrower knows of no unpaid
assessment which is due and payable or any claims being asserted as to
which there is a reasonable likelihood of a Material Adverse Effect,
except such thereof as are being contested in good faith and by
appropriate proceedings diligently conducted, and for which adequate
reserves have been set aside in accordance with GAAP.
(i) Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of
any Governmental Body as to
38
which there is a reasonable likelihood of a Material Adverse Effect. The
Borrower and each Subsidiary is complying in all material respects with
all applicable statutes and regulations, including ERISA, of all
Governmental Bodies, a violation of which is reasonably likely to have a
Material Adverse Effect.
(j) Neither the Borrower nor any Subsidiary (a) is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act (other than the minimum statutory requirements that do
not violate clause (b) below) or the Investment Company Act of 1940, or
(b) is subject to any statute or regulation which prohibits or restricts
the incurrence of Indebtedness under the Loan Documents including, without
limitation, statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone,
telegraph or other public utility services.
(k) The Borrower and each Subsidiary has good and marketable title
to all of its Property, title to which is material to the Borrower and its
Subsidiaries taken as a whole, subject to no Liens, except Permitted
Liens.
(l) Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying any Margin Stock. No part of the
proceeds of the Advances or the Letter of Credit will be used, directly or
indirectly, for a purpose which violates any law, rule or regulation of
any Governmental Body, including without limitation the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System, as amended. Margin Stock constitutes less than 25% of the assets
(as determined by any reasonable method) of the Borrower and/or any of its
Subsidiaries.
(m) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that has resulted in or is reasonably expected to
result in a Material Adverse Effect.
(n) Schedule B (actuarial information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such
Schedule B there has been no change in such funding status which is
reasonably likely to have a Material Adverse Effect.
(o) Neither the Borrower nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability which is reasonably
likely to have a Material Adverse Effect.
39
(p) Neither the Borrower nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(q) The Borrower has heretofore delivered to the Banks copies of its
audited Consolidated Balance Sheets as of December 31, 1995, and the
related Consolidated Statements of Income, Cash Flows and Shareholders'
Equity for the period then ended, and the unaudited Consolidated Balance
Sheet of the Borrower as of September 30, 1996 and the related unaudited
Consolidated Statements of Income, Cash Flows and Shareholders' Equity,
for the fiscal quarter then ended (collectively, with the related notes
and schedules, the "Financial Statements"). The Financial Statements
fairly present the Consolidated financial condition and results of the
operations of the Borrower as of the dates and for the periods indicated
therein and have been prepared in conformity with GAAP. Except as
reflected in the Financial Statements or in the footnotes thereto, neither
the Borrower nor any Subsidiary has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which,
in accordance with GAAP, should have been disclosed in the Financial
Statements and was not. Since December 31, 1995, there has been no
Material Adverse Change.
(r) Neither the Borrower nor any Subsidiary (i) has received written
notice or otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential
or actual liability as to which individually or in the aggregate there is
a reasonable likelihood of a Material Adverse Effect, arising in
connection with: (a) any non-compliance with or violation of the
requirements of any Environmental Laws or (b) the release or threatened
release of any toxic or hazardous waste, substance or constituent, or
other substance into the environment, (ii) to the best knowledge of the
Borrower, has any liability in connection with the release or threatened
release of any toxic or hazardous waste, substance or constituent, or
other substance into the environment as to which individually or in the
aggregate there is a reasonable likelihood of a Material Adverse Effect,
(iii) has received notice of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release or
threatened release of any toxic or hazardous waste, substance or
constituent or other substance into the environment for which the Borrower
or any Subsidiary is or may be liable as to which there is a reasonable
likelihood of a Material Adverse Effect, or (iv) has received notice of
any claimed liability by the Borrower or any Subsidiary, to any Person
under any Environmental Law, as to which there is a reasonable likelihood
of a Material Adverse Effect. The Borrower and each Subsidiary is in
compliance in all material respects with the
40
financial responsibility requirements of all Environmental Laws the
failure to comply with which would reasonably likely have a Material
Adverse Effect.
(s) The Borrower has delivered to the Agent and each Bank conformed
copies of the Agency Agreement and the form of Debenture issued pursuant
thereto, together with all consents, waivers, amendments thereof and
supplements thereto. Each of such agreements as amended or supplemented,
as the case may be, is in full force and effect.
(t) There are no material controversies pending between the Borrower
or any Subsidiary and any of their respective employees, as to which there
is a reasonable likelihood of a Material Adverse Effect.
(u) No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary in connection with the transactions contemplated hereby,
contains or will contain a misstatement of material fact, or, to the best
knowledge of the Borrower, omits or will omit to state a material fact
required to be stated in order to make the statements herein or therein
contained not misleading in the light of the circumstances under which
made.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, the Letter of Credit shall be outstanding or any Bank shall have
any Commitment hereunder, the Borrower will:
(a) Financial Statements. Maintain, and cause each Subsidiary to
maintain, a system of accounting in accordance with GAAP, and furnish or
cause to be furnished to the Agent and each Bank:
(i) As soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of its
Consolidated and Consolidating Balance Sheets as at the end of such
fiscal year, together with the related Consolidated and
Consolidating Statements of
41
Income, Cash Flows and Shareholders' Equity as of and through the
end of such fiscal year, setting forth, with respect to Consolidated
Statements, in each case in comparative form the figures for the
preceding fiscal year. The Consolidated Balance Sheet and Statements
of Income, Cash Flows and Shareholders' Equity shall be certified by
the Accountants. The Consolidating Balance Sheets and Statements of
Income, Cash Flows and Shareholders' Equity shall be certified by
the chief financial officer of the Borrower (or such other officer
as shall be acceptable to the Agent) as being complete and correct
in all material respects and as presenting fairly the Consolidating
financial condition and results of operations of the Borrower and
its Subsidiaries.
(ii) As soon as available, but in any event not later than 60
days after the end of each of the first three quarterly accounting
periods in each fiscal year of the Borrower (A) a copy of the
Consolidated and Consolidating Balance Sheet as at the end of each
such quarterly period, and the Consolidated and Consolidating
Statements of Income, Cash Flows and Shareholders' Equity, for such
period and for the elapsed portion of the fiscal year through such
date, setting forth, with respect to Consolidated Statements, in
each case in comparative form the figures for the corresponding
periods of the preceding fiscal year, certified by the chief
financial officer of the Borrower (or such other officer acceptable
to the Agent) as having been prepared in accordance with GAAP
(except that notes to such Statements need not be included) and as
presenting fairly the Consolidated financial condition and the
Consolidated results of operations of the Borrower and its
Subsidiaries, and (B) a certificate of the chief financial officer
of the Borrower (or such other officer as shall be acceptable to the
Agent) in detail reasonably satisfactory to the Agent (x) stating
that there exists no violation of any of the terms or provisions of
the Loan Documents, or the occurrence of any condition or event
which would constitute a Default and, if so, specifying in such
certificate all such violations, conditions and events, and the
nature and status thereof, (y) containing computations showing
compliance with the provisions of Section 5.01(l) and Sections
5.02(a), (b), (c), (e), (f), (i) and (k) and setting forth the
Public Debt Rating.
(iii) As soon as available, but in any event not later than
120 days after the end of the last quarterly accounting period in
each fiscal year of the Borrower, the same certificate as is
required by clause (b)(ii) above.
(b) Certificates; Other Information. Furnish to the Agent and each
Bank:
(i) Prompt written notice if: (A) any Indebtedness or
Contingent Obligation of the Borrower or any Subsidiary in excess of
US$25,000,000 is declared or shall become due and payable prior to
its stated maturity, or is called and not paid when due, (B) a
default shall have occurred under any note (other than the Notes) or
the holder of any such note, or other evidence of Indebtedness,
certificate or security evidencing any such Indebtedness or any
obligee with respect to any other Indebtedness of the Borrower or
any Subsidiary has the right to declare any such Indebtedness due
and payable prior
42
to its stated maturity as a result of such default, or (C) any
officer of the Borrower shall have obtained knowledge of the
occurrence of a Default or an Event of Default; and
(ii) Prompt written notice of: (A) any citation, summons,
subpoena, order to show cause or other order naming the Borrower or
any Subsidiary a party to any proceeding before any Governmental
Body as to which there is a reasonable likelihood of a Material
Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such
notice a copy of such citation, summons, subpoena, order to show
cause or other order, (B) any lapse or other termination of any
material license, permit, franchise or other authorization issued to
the Borrower or any Subsidiary by any Governmental Body, (C) any
refusal by any Governmental Body to renew or extend any such
material license, permit, franchise or other authorization, and (D)
any dispute between the Borrower or any Subsidiary and any Person,
as to which lapse, termination, refusal or dispute there is a
reasonable likelihood of a Material Adverse Effect; and
(iii) Promptly upon becoming available, copies of all (A)
financial statements, reports and proxy statements which the
Borrower may have sent to its stockholders generally and copies of
all registration statements and regular, periodic or special
reports, schedules and other material which the Borrower may now or
hereafter be required to file with or deliver to any securities
exchange or the Securities and Exchange Commission, or any other
Governmental Body succeeding to the functions thereof, and with any
national securities exchange, and (B) material news releases and
annual reports relating to the Borrower; and
(iv) (A) Promptly after the Borrower or any ERISA Affiliate
knows or has reason to know that any ERISA event has occurred, a
statement of the chief financial officer of the Borrower describing
such ERISA Event and the action, if any, that the Borrower or such
ERISA Affiliate has taken and proposes to take with respect thereto
and (B) on the date any records, documents or other information must
be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 or ERISA, a copy of such records, documents and
information; and
(v) Promptly upon receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer
any Plan; and
43
(vi) Promptly upon the request of the Agent or any Bank
therefor, copies of each Schedule B (actuarial information) to the
annual report (Form 5500 Series) with respect to each Plan which
have been filed with the Internal Revenue Service; and
(vii) Promptly upon receipt thereof by the Borrower or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan which could reasonably be expected to
have a Material Adverse Effect, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan which could reasonably be expected to have a
Material Adverse Effect or (C) the amount of liability incurred, or
that may be incurred, by the Borrower or any ERISA Affiliate in
connection with any event described in clause (A) or (B);
(viii) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any
Subsidiary under any Environmental Law, as to which, there is a
reasonable likelihood that there would be a Material Adverse Effect;
and
(ix) With reasonable promptness, such other financial data as
the Agent or any Bank may reasonably request; provided, however,
that the Borrower shall not be required to furnish financial data it
reasonably believes to be proprietary and confidential unless such
financial data is material to the business or financial position of
the Borrower or any Subsidiary. Any financial data or other
information provided pursuant to this subparagraph to the Agent or
the Banks shall be treated as Confidential Information.
(c) Legal Existence. Except as permitted by Section 5.02(d),
maintain, and cause each Subsidiary to maintain, its corporate existence,
in good standing in the jurisdiction of its incorporation or organization
and in each other jurisdiction in which the failure so to do would
reasonably likely have a Material Adverse Effect, provided that the
foregoing shall not require the Borrower to maintain the corporate
existence or the business of any Subsidiary which in the judgment of the
Borrower is no longer necessary or desirable, unless the failure to so
maintain would reasonably likely have a Material Adverse Effect.
(d) Taxes. Pay and discharge when due, and cause each Subsidiary so
to do, all taxes, assessments and governmental charges, license fees and
levies upon or with respect to the Borrower or such Subsidiary and upon
the income, profits and Property of the Borrower and its Subsidiaries,
which if unpaid, could reasonably be expected to have a Material Adverse
Effect or become a Lien on the Property of the
44
Borrower or such Subsidiary not permitted under Section 5.02(b), unless
and to the extent only that such taxes, assessments, charges, license fees
and levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and as to which
appropriate reserves are being maintained and provided that any such
contested tax, assessment, charge, license, fee or levy shall not
constitute, or create, a Lien on any Property of the Borrower or such
Subsidiary other than a Permitted Lien.
(e) Insurance. Maintain, and cause each Subsidiary to maintain,
insurance on its Property against such risks and in such amounts as is
customarily maintained by Persons organized for profit engaged in similar
businesses and owning similar Properties in the same general areas in
which the Borrower or the relevant Subsidiary operates, except to the
extent of self-insurance programs of the Borrower or a Subsidiary covering
such risks as the Borrower's or such Subsidiary's management, acting in
good faith, determines to be commercially reasonable, including, without
limitation, public liability and workers' compensation insurance. The
Borrower shall file with the Agent such information concerning its
insurance program and that of its Subsidiaries as the Agent may reasonably
request.
(f) Payment of Indebtedness and Performance of Obligations. Pay and
discharge, and cause each Subsidiary to pay and discharge, when due all
lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, would reasonably likely (i) have a
Material Adverse Effect, or (ii) become a Lien upon Property of the
Borrower or such Subsidiary other than a Permitted Lien.
(g) Condition of Property. At all times, maintain, protect and keep
in good repair working order and condition (ordinary wear and tear
excepted), and cause each Material Subsidiary so to do, all Property
necessary to the operation of the business of the Borrower and its
Material Subsidiaries.
(h) Observance of Legal Requirements; ERISA. Observe and comply in
all material respects, and cause each Subsidiary so to do, with all laws
(including ERISA), ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements
of all Governmental Bodies, which now or at any time hereafter may be
applicable to the Borrower and its Subsidiaries, a violation of which
would reasonably likely have a Material Adverse Effect, except such
thereof as shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and as to which
appropriate reserves are being maintained.
45
(i) Inspection of Property; Books and Records; Discussions. Without
expense to the Borrower, upon reasonable notice, permit representatives of
the Agent and each Bank to visit the offices of the Borrower and its
Subsidiaries, to inspect and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and
its Subsidiaries with the principal officers thereof, provided, however,
that the Borrower shall not be required to disclose or permit the Agent or
the Banks or others to acquire access to any trade secrets of the Borrower
or its Subsidiaries or any other process, techniques or information
reasonably deemed by the Borrower to be proprietary and confidential, and
provided further that Persons other than the Agent or the Banks who are
retained for purposes of the foregoing inspection rights shall in any
event be limited to such information as is within the scope of their
expertise and engagement. Any financial data or other information provided
pursuant to this paragraph to the Agent or the Banks shall be treated as
Confidential Information.
(j) Licenses, Etc. Maintain and cause each Subsidiary to maintain,
in full force and effect, all material licenses, copyrights, patents,
permits, applications, reports, authorizations and other rights,
including, without limitation, all rights under the Cooperation Agreement
between Xxxxx Xxxxxx Systems, Inc. and Xxxxxx GmbH fur Umwelt und
Energietechnik, as amended, as are necessary for the conduct of its
business a termination of which would reasonably likely have a Material
Adverse Effect.
(k) Shareholders' Equity. Maintain at all times its Shareholders'
Equity in an amount at least equal to US$400,000,000.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, the Letter of Credit shall be outstanding or any Bank shall have
any Commitment hereunder, the Borrower will not:
(a) Subsidiary Indebtedness. Permit Subsidiaries to create, incur or
assume any liability for Indebtedness except Permitted Subsidiary
Indebtedness, provided that immediately after giving effect to the
incurrence thereof, there shall exist no Default.
(b) Liens. Create, incur, assume or suffer to exist any Lien upon
any of its or its Subsidiaries' Property or assets, whether now owned or
hereafter acquired, securing any Indebtedness or obligation, or permit any
Subsidiary so to do, except Permitted Liens.
(c) Unencumbered Asset Coverage. At any time, permit Consolidated
total assets not subject to any Lien, less goodwill and other intangible
assets and unamortized debt issuance costs (all as set forth on a
Consolidated Balance Sheet of the Borrower prepared in accordance with
GAAP) to be less than 150% of the sum of
46
(i) the unpaid balance of all unsecured Indebtedness of the Borrower
(other than Subordinated Indebtedness of the Borrower, and not including
any Indebtedness of any Subsidiary), whether existing on September 20,
1993 or arising thereafter, (ii) the unpaid balance of all unsecured
Indebtedness of Subsidiaries of the Borrower existing on September 20,
1993 as set forth on Schedule 5.02(c), (iii) 133% of the unpaid balance of
all unsecured Indebtedness of Subsidiaries of the Borrower arising after
September 20, 1993, and (iv) Consolidated unsecured Contingent Obligations
(it being understood that, for purposes of this Section 5.02(c), (x)
leased assets representing the capitalization of rentals in accordance
with GAAP shall not be construed to be unencumbered assets, and (y) in
calculating Consolidated total assets not subject to any Lien as
aforesaid, the Borrower need not exclude assets subject to Liens described
in clauses (b) through (e) of the definition of Permitted Liens unless and
until such time as the amount of such Liens exceeds US$25,000,000 in the
aggregate, whereupon the aggregate amount of such Liens shall be deducted
in calculating Consolidated total assets not subject to any Lien as
aforesaid).
(d) Merger and Acquisition or Sale of Property. Merge or consolidate
with any Person, or acquire by purchase or otherwise all or substantially
all of the assets of any Person, or permit any of its Subsidiaries so to
do, except that:
(i) any Subsidiary may be merged into or consolidated with any
other Subsidiary;
(ii) any Subsidiary may be merged into or consolidated with
the Borrower, provided that if the continuing or surviving
corporation shall not be the Borrower, then (A) the Subsidiary
constituting such continuing or surviving corporation shall have
been directly or indirectly wholly-owned by the Borrower immediately
prior to such merger or consolidation, (B) such continuing or
surviving corporation shall be a corporation organized and existing
under the laws of the United States of America, or any State thereof
or the District of Columbia, (C) such continuing or surviving
corporation shall have expressly assumed the obligations of the
Borrower under this Agreement and the Notes, as fully and
effectually as if such continuing or surviving corporation had been
an original party to this Agreement and the original issuer of the
Notes, and (D) immediately after such merger or consolidation, and
giving effect thereto, there shall exist no Default;
(iii) the Borrower or any Subsidiary may acquire the assets of
a Subsidiary, provided that immediately after such acquisition, and
giving effect thereto, there shall exist no Default; and
47
(iv) the Borrower or any Subsidiary may consummate any
Acquisition, provided that (A) immediately after consummation of
such Acquisition, and giving effect thereto, there shall exist no
Default and (B) if the Borrower shall consummate such Acquisition,
the Borrower shall be the continuing or surviving corporation, and
if any Subsidiary shall consummate such Acquisition the continuing
or surviving corporation shall be a Subsidiary.
(e) Consolidated Indebtedness. Permit its ratio of the sum of (i)
Consolidated Indebtedness plus (ii) Consolidated Contingent Obligations to
the sum of (x) Consolidated Indebtedness plus (y) Consolidated Contingent
Obligations plus (z) the Borrower's Shareholders' Equity to be greater
than 0.625:1.0 at any time.
(f) Sale of Property. Sell, assign, exchange, lease, transfer or
otherwise dispose of any Property, whether now owned or hereafter
acquired, to any Person, or permit any Subsidiary so to do, except:
(i) dispositions to a Subsidiary for a consideration at least
equal to the fair value of the Property disposed of;
(ii) dispositions by one Subsidiary to the Borrower or to
another Subsidiary;
(iii) dispositions of the Stock or assets of a Subsidiary of
Xxxxx Energy in which the Borrower or another Subsidiary retains a
long-term operating interest;
(iv) other dispositions of Stock or assets of the Borrower or
a Subsidiary for a consideration at least equal to the fair value of
the Stock or assets so sold or transferred; provided that,
immediately after each such transaction (other than any disposition
permitted under clause (vi) below), the value of all such
transactions under this clause (iv) (determined at the time it
occurs as reflected on the books of the Borrower determined in
accordance with GAAP) shall not exceed 15% of the Consolidated total
assets of the Borrower, total assets being computed after giving
effect to the most recent proposed transaction (other than any
disposition permitted under clause (vi) below) (determined in
accordance with GAAP) and there shall exist no Default;
(v) the payment of dividends and distribution of Stock of the
Borrower in the ordinary course of business; and
48
(vi) dispositions of shares of the Stock of Xxxxx Energy,
provided that no disposition permitted pursuant to this clause (vi)
shall result in the Borrower owning less than 80% of the Stock of
Xxxxx Energy.
(g) Compliance with ERISA. Engage in any "prohibited transaction",
as such term is defined in Section 4975 of the Code or Section 406 of
ERISA, with respect to any Plan, or incur any "accumulated funding
deficiency", as such term is defined in Section 412 of the Code or Section
302 of ERISA, or terminate, or permit any Subsidiary or any ERISA
Affiliate to terminate, any Plan which would reasonably likely result in
any liability of the Borrower, any Subsidiary or any ERISA Affiliate to
the PBGC, or permit the occurrence of any Reportable Event or any other
event or condition which presents a risk of such a termination by the PBGC
of any Plan, or withdraw or effect a partial withdrawal from a
Multiemployer Plan, or permit any Subsidiary or any ERISA Affiliate which
is an employer under such a Multiemployer Plan so to do, if any thereof
would reasonably likely have a Material Adverse Effect.
(h) Certificate of Incorporation and By-Laws. Amend or otherwise
modify its certificate of incorporation or by-laws, or permit any
Subsidiary so to do, in any way which would reasonably likely materially
and adversely affect the validity or enforceability of the Loan Documents.
(i) Fixed Charge Coverage. Permit the Fixed Charge Coverage Ratio to
be less than 1.50 to 1.00 for any preceding period of four fiscal quarters
(taken as a whole).
(j) Agency Agreement. Amend the subordination provisions contained
in the Agency Agreement in a manner not satisfactory to the Required
Banks.
(k) Current Ratio. Permit its ratio of Current Assets to Current
Liabilities to be less than 1.25:1 at any time.
(l) Palladium Transaction. From and after the date of the issuance
of the Letter of Credit, enter into or consent to any amendment or waiver
of the terms of the Palladium Documents that would be reasonably likely to
have a material adverse effect on the rights and remedies of the Agent or
any Bank under this Agreement, any Note or the Letter of Credit.
49
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The failure of the Borrower to pay (i) any installment of
principal payable hereunder or under the Notes when the same shall be due
and payable or (ii) interest payable hereunder or under the Notes for
three days after the same shall be due and payable or (iii) any fees, L/C
Applicable Commissions or expenses payable hereunder or under the Notes
for five days after the same shall be due and payable; or
(b) The failure of the Borrower to observe or perform any covenant
or agreement contained in Section 5.01 (b)(iv)-(viii), 5.01(c), 5.01(k) or
Section 5.02; or
(c) The failure of the Borrower to observe or perform any other
term, covenant, or agreement contained in this Agreement and such failure
shall have continued unremedied for a period of 30 days after the Borrower
shall have obtained knowledge thereof; or
(d) Any representation or warranty of the Borrower (or of any
officer of the Borrower on its behalf) made in this Agreement or any other
Loan Document or in any certificate, report, opinion (other than an
opinion of counsel) or other document delivered or to be delivered
pursuant to this Agreement or any other Loan Document, shall prove to have
been incorrect or misleading (whether because of misstatement or omission)
in any material respect when made; or
(e) Any obligation of the Borrower or any Subsidiary, whether as
principal, guarantor, surety or other obligor, for the payment of
Indebtedness or Contingent Obligations aggregating in excess of
US$25,000,000 shall not be paid when due (including any grace period for
the payment thereof) or shall become or shall be declared to be due and
payable prior to the expressed maturity or expiration thereof, or any
event or circumstance shall occur which permits the holder or holders of
any such obligation or obligations to declare such obligation due and
payable prior to the expressed maturity thereof; or
(f) The Borrower or any Material Subsidiary or any Material
Subsidiary Group, shall (i) suspend or discontinue its business, or (ii)
make an assignment for the benefit of creditors, or (iii) generally not be
paying its debts as such debts become due, or (iv) admit in writing its
inability to pay its debts as they become due, or (v) file a voluntary
petition in bankruptcy, or (vi) become insolvent (however such insolvency
50
shall be evidenced), or (vii) file any petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, or (viii) petition or
apply to any tribunal for any receiver, custodian or any trustee for a
substantial part of its Property, or (ix) be the subject of any such
proceeding filed against it which remains undismissed for a period of 60
days, or (x) file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order, judgment
or decree approving such petition in any such proceeding, or (xi) seek,
approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or fiscal
agent for it, or any substantial part of its Property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or
fiscal agent and such order remains in effect for 60 days, or (xii) take
any formal action for the purpose of effecting any of the foregoing or
looking to the liquidation or dissolution of the Borrower or such Material
Subsidiary or Material Subsidiary Group; or
(g) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Material Subsidiary or any
Material Subsidiary Group a bankrupt or insolvent, or (ii) approving as
properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the Borrower or
any Material Subsidiary or any Material Subsidiary Group under the United
States bankruptcy laws or any other applicable Federal or state law, or
(iii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, fiscal agent (or other similar official) of the Borrower or
any Material Subsidiary or any Material Subsidiary Group or of any
substantial part of the Property thereof, or (iv) ordering the winding up
or liquidation of the affairs of the Borrower or any Material Subsidiary
or any Material Subsidiary Group, and any such decree or order continues
unstayed and in effect for a period of 60 days; or
(h) Any judgment or decree against the Borrower or any Subsidiary in
excess of US$25,000,000 or judgments or decrees against the Borrower and
its Subsidiaries aggregating in excess of US$25,000,000 shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of 60 days; or
(i) The Borrower or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Banks (which opinion shall be final
and conclusive), shall be reasonably likely to incur liability in excess
of 8% of the Shareholders' Equity of the Borrower and such liability shall
be reasonably expected to have a Material Adverse Effect as a result of
one or more of the following: (i) the occurrence of any ERISA Event; (ii)
the partial or complete withdrawal of the Borrower or any of its ERISA
51
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Banks, by notice to the Borrower, declare the
obligation of each Bank to make Term Advances and to issue the Letter of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Banks, (A) by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower and (B) give notice to the Beneficiary pursuant to the Letter of Credit
that the Letter of Credit will terminate in 20 days due to the occurrence of an
Event of Default hereunder; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (x) the obligation of each Bank to make Term Advances
and to issue the Letter of Credit shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may, or shall at the request of the Required Banks, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Agent on behalf of the Banks in same day funds at the Agent's
office designated in such demand, for deposit in a cash collateral account (the
"L/C Cash Collateral Account") with and under the exclusive control of the Agent
for the ratable benefit of the Agent and the Banks, an amount equal to the
aggregate Available Amount of the Letter of Credit. If at any time the Agent
determines that any funds held in the L/C Cash Collateral Account are subject to
any right or claim of any Person other than the Agent and the Banks or the total
amount of such funds is less than the aggregate Available Amount of the Letter
of Credit, the Borrower will, forthwith upon demand by the Agent, pay to the
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Agent determines to be free and clear of any such right and
claim.
52
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Bank hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes or any other amounts due under this
Agreement), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to this Agreement, any other Loan Document or applicable law. The Agent agrees
to give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement or any other Loan Agreement.
SECTION 7.02. Agent's Reliance, Etc. None of the Agent, any
Affiliate thereof nor any of their directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent: (i) may treat the payee of any Note as the holder thereof
until the Agent receives and accepts an Assignment and Acceptance entered into
by the Bank that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (ii) may consult with legal
counsel (including 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 in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or representation to
any Bank and shall not be responsible to any Bank for any statements, warranties
or representations (whether written or oral) made in or in connection with the
Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of the Borrower or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible
to any Bank for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier, telegram
or telex) believed by it to be genuine and signed or sent by the proper party or
parties.
53
SECTION 7.03. Deutsche Bank and Affiliates. With respect to its
Commitments, the Advances made by it, the Letter of Credit issued by it, and the
Note issued to it, Deutsche Bank shall have the same rights and powers under the
Loan Documents as any other Bank and may exercise the same as though it were not
the Agent; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Deutsche Bank in its individual capacity. Deutsche Bank and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, the Borrower, any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower or any such
Subsidiary, all as if Deutsche Bank were not the Agent and without any duty to
account therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent, any affiliate thereof or
any other Bank and based on the Financial Statements and such other 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, any affiliate thereof 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 action under this Agreement.
SECTION 7.05. Indemnification. The Banks severally agree to
indemnify the Agent or any affiliate thereof (to the extent not reimbursed by
the Borrower) from and against such Bank's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent or any affiliate thereof in any way relating to or arising out of any Loan
Documents or any action taken or omitted by the Agent under the Loan Documents
(collectively, the "Indemnified Costs"), provided that no Bank shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent or any affiliate thereof promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent or such affiliate in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any affiliate
thereof, any Bank or a third party. For purposes of this Section 7.05, the
Banks' respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Bank, (b) their respective
pro rata share of the aggregate Available
54
Amount of the Letter of Credit outstanding at such time, and (c) the aggregate
unused portion of their respective Term Commitment at such time.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent. 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's giving of notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Banks, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Banks, do any
of the following: (a) waive any of the conditions specified in Section 3.01,
3.02 or Section 3.03, (b) increase the Commitments of the Banks or the aggregate
Available Amount of the outstanding Letter of Credit or subject the Banks to any
additional obligations, (c) reduce the principal of, or interest on, any Advance
hereunder, the Notes or any commission, fees or other amounts payable hereunder,
(d) postpone the expiry date of the Letter of Credit or any date fixed for any
payment of principal of, or interest on, any Advance or the Notes or any fees or
other amounts payable hereunder, (e) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Advances on the Notes, or the
number of Banks, that shall be required for the Banks or any of them to take any
action hereunder to secure the obligations, (f) amend this Section 8.01, (g)
amend the definition of "Required Banks" or (h) amend the form of the Letter of
Credit; and provided further that no amendment, waiver or
55
consent shall, unless in writing and signed by the Agent in addition to the
Banks required above to take such action, affect the rights or duties of the
Agent under this Agreement, any Note or any other Loan Document.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at Xxx Xxxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxx, Senior Vice President and Chief Financial
Officer, Fax No. (000) 000-0000; if to any Initial Bank, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Bank,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Bank; and if to the Agent, at its address at
Deutsche Bank AG, New York Branch, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Fax No. (000) 000-0000, Attention: Xxxx Xxxxx, Corporate Finance
Services; or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Bank or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) Whether or not the
transactions contemplated hereby shall be consummated, the Borrower agrees to
pay within 30 days after presentation of a statement or invoice therefor all
costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under the Loan
Documents; provided, however, that to the extent that the Borrower has received
a statement of such costs and expenses prior to the Initial Lending Date, the
Borrower agrees to pay such costs and expenses concurrently on or in
56
advance of such date. The Borrower further agrees to pay within 30 days after
presentation of a statement or invoice therefor all costs and expenses of the
Agent and the Banks, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan Documents by reason of
the occurrence of an Event of Default or in connection with any refinancing or
restructuring of the transactions contemplated hereby or as a result of any
insolvency or bankruptcy proceedings, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Bank in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Bank and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Loan Documents and the Palladium
Transaction Documents, any of the transactions contemplated herein or therein or
the actual or proposed use of the proceeds of the Advances or the Letter of
Credit or (ii) the actual or alleged presence of hazardous materials on any
property of the Borrower or any of its Subsidiaries or any environmental action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 8.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim against the Agent, any Bank, any of their affiliates, or any
of their respective directors, officers, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Advances or the Letter of Credit.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Bank other than
on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank any
57
amounts required to compensate such Bank for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Bank to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10, 2.13 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Bank and each of its affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank or such
affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document held by such Bank, whether or not such Bank
shall have made any demand under this Agreement or such Loan Document and
although such obligations may be unmatured. Each Bank agrees promptly to notify
the Borrower after any such set-off and application, provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank and its affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Bank and its affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
on the Effective Date and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Banks.
SECTION 8.07. Assignments and Participations. (a) Each Bank may
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement,
including, without limitation, a constant and nonvarying percentage of its Term
Advance, its Letter of Credit Commitment, its Letter of Credit Advances and its
share of the Available Amount of the Letter of Credit, (ii) except in the case
of an assignment to a Person that,
58
immediately prior to such assignment, was a Bank or an assignment of all of a
Bank's rights and obligations under this Agreement, the amount of the
Commitments of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than US$10,000,000, (iii)
each such assignment shall be to an Eligible Assignee, and in the case of an
Eligible Assignee that is not rated at least A- by S&P and A3 by Xxxxx'x, or
such Eligible Assignee following such assignment shall hold more than
US$20,000,000 of the total Letter of Commitments hereunder, the Beneficiary
shall have consented to such assignment, and (iv) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
subject to such assignment and a processing and recordation fee of US$3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of the Loan Documents, together with copies of the financial statements
referred to in Section 4.01 of this Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Bank 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 action under the Loan Documents; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably
59
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the Loan
Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Banks and
the Commitment of, and principal amount of the Advances owing to, each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Banks may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained a Commitment
hereunder, a new Note to the order of the assigning Bank in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes and shall be in substantially the form of Exhibit A
hereto.
(e) In the event that the Letter of Credit shall have been issued
prior to an assignment under the terms of this Section 8.07, the Agent shall
promptly give the Banks notice of such an assignment and the Banks hereby agree
that they, at the request of the Agent, shall execute a revised Letter of Credit
reflecting such assignment (the "Replacement Letter of Credit").
(f) Each Bank may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such Bank's
obligations under this Agreement (including, without limitation, its Commitments
to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such
60
Bank shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Agent and the other Banks shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would (i) increase the amount of such Bank's Term Commitment or Letter of Credit
Commitment, (ii) reduce the principal of, or interest on any Advance, the L/C
Applicable Commission or any other amounts payable hereunder, in each case to
the extent subject to such participation, or (iii) postpone any date fixed for
any payment of principal of, or interest on, any Advance or the L/C Applicable
Commission or any other amounts payable hereunder, in each case to the extent
subject to such participation.
(g) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Bank by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Bank.
(h) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Bank shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to the Agent's or such Bank's Affiliates and their
officers, directors, employees, agents and advisors and, as contemplated by
Section 8.07(f), to actual or prospective assignees and participants, and then
only on a confidential basis, (b) as required by any law, rule or regulation or
judicial process and (c) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
SECTION 8.09. No Liability of the Banks. The Borrower assumes all
risks of the acts or omissions of any beneficiary of the Letter of Credit with
respect to its use of the Letter of Credit. Neither the Agent nor any Bank nor
any of their officers or directors shall be liable or responsible for (a) the
use that may be made of the Letter of Credit or any acts or omissions of any
beneficiary in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the
61
Banks against presentation of documents that do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Letter of Credit,
except that the Borrower shall have a claim against such Bank, and such Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Bank's willful misconduct or gross negligence in determining
whether documents presented under the Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Bank's willful failure to make lawful payment
under the Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, such Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto
62
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent
and the Banks hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Bank in the negotiation, administration, performance
or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
XXXXX CORPORATION
By
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH, as Agent
By
-------------------------------------
Name:
Title:
By
-------------------------------------
Name:
Title:
63
BANKS
Term Letter of Credit Pro Rata
Commitment Commitment Share
---------- ---------------- --------
US$34,000,000 US$34,000,000 35.789473685% DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
US$16,000,000 US$16,000,000 16.842105263% NATIONSBANK, N.A.
By
----------------------------
Name:
Title:
US$15,000,000 US$15,000,000 15.789473684% BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By
----------------------------
Name:
Title:
64
US$15,000,000 US$15,000,000 15.789473684% THE FUJI BANK, LIMITED
By
----------------------------
Name:
Title:
US$15,000,000 US$15,000,000 15.789473684% WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
------------ ------------ ------- TOTAL
US$95,000,000 US$95,000,000 100%
SCHEDULE I
XXXXX CORPORATION
TERM LOAN AND LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Office Eurodollar Lending Office
------------ ----------------------- -------------------------
Deutsche Bank AG, Deutsche Bank AG, New York Deutsche Bank AG, New York
New York and/or and/or Cayman Islands Branches and/or Cayman Islands Branches
Cayman Islands Branches 00 X. 00xx Xxxxxx 00 X. 00xx Xxxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10019
Attention: Attention:
Xxxx Xxxxx Xxxx Xxxxx
Corporate Finance Services Corporate Finance Services
Tel. No.: (000) 000-0000 Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
NationsBank, N.A. NationsBank, N.A. NationsBank, N.A.
0000 Xxxxxxxxx Xxxxx One Independence Center
6th Floor 101 North Xxxxx Street
MD 20817-1876 Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxx Xxxxxx
Mailing Code: MD26000613 cc: NationsBank, N.A.
Tel. No.: (000) 000-0000 0000 Xxxxxxxxx Xxxxx
Fax No.: (000) 000-0000 6th Floor
MD 20817-1876
Attention: Xxxxxxx Xxxxxxx
Mailing Code: MD26000613
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The Bank of Tokyo-Mitsubishi The Bank of Tokyo-Mitsubishi The Bank of Tokyo-Mitsubishi
Trust Company Trust Company Trust Company
1251 Avenue of the Americas 1251 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10020
Attention: Xxxxx Xxxxxxx Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000 Tel.: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
Two World Trade Center Two World Trade Center
New York, N.Y. 10048 New York, N.Y. 10048
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000 Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
2
Westdeutsche Westdeutsche Westdeutsche
Landesbank Girozentrale Landesbank Girozentrale Landesbank Girozentrale
1211 Avenue of the Americas Cayman Islands Office
23rd Floor c/o Westdeutsche
New York, N.Y. 10036 Landesbank Girozentrale
Attention: Xxxx X. Xxxxxxxx 1211 Avenue of the Americas
Tel. No.: (000) 000-0000 23rd Floor
Fax: (000) 000-0000 Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxxx
Tel. No.: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE 1.01
List of Excluded Rent Expenses
($ in thousands)
WTE New Martinsville
Fiscal Year Tulsa, Oklahoma Hydroelectric Plant
----------- --------------- -------------------
1993 $ 10,495 $ 10,724
1994 10,481 10,724
1995 10,471 10,724
1996 10,458 10,724
1997 10,440 10,724
Later Years 103,066 64,348
Total $ 155,411 $ 117,968
Schedule 3.01(b)
Disclosed Litigation
NONE
Schedule 4.01(a)
Material Subsidiaries
Xxxxx Services Corporation
Xxxxx Energy, Inc.
Xxxxx Financial Services, Inc.
Xxxxx Entertainment, Inc.
Xxxxx Allied Maintenance Corporation
Schedule 4.01(h)
Tax Liabilities
NONE
Schedule 5.02(c)
Existing Subsidiary Indebtedness
(September 20, 1993)
Adjustable rate revenue bonds $124,755,000
due 2014 through 2024
Obligations under a bank revolving 16,136,000
Line of Credit
Other Borrowings 28,423,000
$169,314,000
============
EXHIBIT A - FORM OF
PROMISSORY NOTE
Dated: April 1, 1997
FOR VALUE RECEIVED, the undersigned, XXXXX CORPORATION, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Bank") for the account of its Applicable Lending
Office on the Maturity Date (each as defined in the Agreement referred to below)
the aggregate principal amount of the Advances made by the Bank to the Borrower
pursuant to the Term Loan and Letter of Credit and Reimbursement Agreement,
dated as of March 26, 1997, among the Borrower, the Bank and certain other banks
party thereto, and Deutsche Bank AG, New York Branch, as Agent for the Bank and
such other bank parties (as amended or modified from time to time, the
"Agreement"; the terms defined therein being used herein as therein defined) and
outstanding on the Maturity Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Deutsche Bank AG, New York Branch, as Agent, at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Syndications Clearing Account
Account No. 100440240008 in same day funds. At the time of the making of any
Advance hereunder and upon each repayment of such Advance, the Bank shall, and
is hereby authorized to, make a notation on the grid attached hereto of the date
and amount of such Advance and each repayment thereof. However, the failure to
make any such notation shall not limit or otherwise affect the Borrower's
obligations hereunder with respect to any Advance or repayment thereof.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Agreement. The Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
XXXXX CORPORATION
By
-------------------------------------
9
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
======== ============= ==================== ====================== =============
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
-------- ------------- -------------------- ---------------------- -------------
======== ============= ==================== ====================== =============
11
EXHIBIT B-1 - FORM OF
NOTICE OF TERM BORROWING
Deutsche Bank AG, New York Branch, as Agent
for the Banks parties
to the Agreement
referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx March 26, 1997
Ladies and Gentlemen:
The undersigned, Xxxxx Corporation, refers to the Term Loan and
Letter of Credit and Reimbursement Agreement, dated as of March 26, 1997 (as
amended or modified from time to time, the "Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Banks parties thereto and Deutsche Bank AG, New York Branch, as Agent for said
Banks, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of
the Agreement that the undersigned hereby requests that the Banks make the Term
Borrowing as provided under the Agreement, and in that connection sets forth
below the information relating to such Term Borrowing (the "Proposed Borrowing")
as required by Section 2.02(a) of the Agreement:
(i) The Business Day of the Proposed Borrowing is April 1, 1997.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
US$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
B-1-ii
(A) the representations and warranties contained in Section 4.01 of
the Agreement are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date;
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(C) the undersigned has satisfied or will as of the day of the
Proposed Borrowing have satisfied, in all material respects all conditions
which the Agreement provides shall be performed by it on or before the day
on which such Proposed Borrowing is made.
Very truly yours,
XXXXX CORPORATION
By
--------------------------------------
Title:
EXHIBIT B-2 - FORM OF
NOTICE OF ISSUANCE
Deutsche Bank AG, New York Branch, as Agent
for the Banks parties
to the Agreement
referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
[Date]
Ladies and Gentlemen:
The undersigned, Xxxxx Corporation, refers to the Term Loan and
Letter of Credit and Reimbursement Agreement, dated as of March 26, 1997 (as
amended or modified from time to time, the "Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Banks parties thereto and Deutsche Bank AG, New York Branch, as Agent for said
Banks, and hereby gives you notice, irrevocably, pursuant to Section 2.03(a) of
the Agreement that the undersigned hereby requests the issuance of the Letter of
Credit under the Agreement, and in that connection sets forth below the
information relating to the Letter of Credit issuance (the "Proposed Issuance")
as required by Section 2.03(a) of the Agreement:
(i) The name of the Beneficiary is_________________. The address of
the Beneficiary is ___________________________________.
(ii) The Business Day of the Proposed Issuance is ___________.
(iii) The Available Amount of the Letter of Credit shall be
US$_______________.
(iv) The expiration date of the Letter of Credit shall be [a date no
later than the Maturity Date].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
B-2-ii
(A) the representations and warranties contained in Section 4.01 of
the Agreement are correct, before and after giving effect to the Proposed
Issuance and to the application of the proceeds therefrom, as though made
on and as of such date;
(B) no event has occurred and is continuing, or would result from
such Proposed Issuance that constitutes a Default; and
(C) the undersigned has satisfied, or will as of the day of the
Proposed Issuance have satisfied, in all material respects all conditions
which the Agreement provides shall be performed by it on or before the day
on which such Proposed Issuance is made.
Very truly yours,
XXXXX CORPORATION
By
--------------------------------------
Title:
EXHIBIT C - FORM OF
LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
No. _______________
[Date of Issuance]
[Name and Address of Beneficiary Agent]
Ladies and Gentlemen:
The undersigned bank parties (the "Banks") hereby establish, at the
request and for the account of Xxxxx Corporation, a Delaware Corporation (the
"Company"), in your favor as agent (the "Beneficiary Agent") for the holders
(the "Holders") from time to time of 126,800,000 Class A Special Shares (the
"Palladium Securities") of Palladium Finance Corporation I, a Canadian
corporation ("FinanceCo I"), and as party to the put agreement, dated as of
_______________, 1997 (the "Put Agreement"), between the Company and you with
respect to the Palladium Securities, this nontransferable Irrevocable Letter of
Credit No. ___, in the amount of US$_________________* (such amount being the
"Available Amount"), effective immediately and expiring at the close of banking
business at the office of Deutsche Bank AG, New York Branch, as agent for the
Banks (the "Agent") on _________________** (the "Maturity Date") unless earlier
terminated in accordance with the terms hereof.
Each Bank, for itself alone and not for any other Bank, hereby
irrevocably authorizes you to draw on it a total amount not to exceed the amount
in United States Dollars ("US$" or "US Dollars") set forth opposite such Bank's
name on the signature pages hereof (such Bank's "Letter of Credit Commitment")
at any time in accordance with the terms and conditions and subject to the
reductions in amount as hereinafter set forth in a single drawing by your draft,
drawn on such Bank at the Agent's office located at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or such other office address in the continental United
States designated by the Agent by written notice to you), payable in accordance
with your payment instructions on the fifth banking day (which shall be any day
other than a Saturday, Sunday or public or bank holiday or the equivalent for
banks generally under the laws of the State of New York) (a "Banking Day") after
sight, accompanied by a completed certificate in
----------
* Amount may not exceed US$95 million, as reduced per the terms of the Term
Loan and Letter of Credit and Reimbursement Agreement (the "Agreement").
** A date no later than 6 Banking Days before the Maturity Date (as defined
in the Agreement).
C-2
substantially the form of Annex A or B attached hereto, which draft and
certificate shall be in writing and signed by you (such draft accompanied by
such certificate being the "Draft"); provided that in no event will you have a
right to make a drawing under this Letter of Credit in respect of any payment
due under the Put Agreement with respect to any Palladium Securities held (to
your knowledge) of record by FinanceCo I or the Company (or any affiliate
thereof) or held (to your knowledge) by any Holder for the account of FinanceCo
I or the Company (or any affiliate thereof).
The Available Amount of this Letter of Credit shall be automatically
and permanently decreased upon the Agent's receipt of each notice from you, in
the form of Annex C attached hereto (a "Reduction Notice") by an amount in US
Dollars equal to the amount of US Dollars stated in each such notice (each such
amount being a "Reduction Amount") and the Available Amount to be drawn by you
under the Draft shall be automatically and permanently decreased to the amounts
stated in such notice. Each Bank's Letter of Credit Commitment shall similarly
be automatically and permanently decreased by its Pro Rata Share (as defined
herein) of each such Reduction Amount. For purposes of this Letter of Credit,
each Bank's "Pro Rata Share" of any amount to be calculated hereunder, shall be
equal to the percentage so specified on the signature pages of this Letter of
Credit.
In addition, except as provided below, this Letter of Credit and
each Bank's Letter of Credit Commitment shall automatically terminate on the
twentieth day after your receipt of written notice (which notice shall be in the
form of Annex D hereto) (the "Termination Notice") from the Agent that, pursuant
to Section 6.01 of the Term Loan and Letter of Credit and Reimbursement
Agreement, dated as of March 26, 1997 (such agreement, as amended, modified or
supplemented from time to time, being the "Xxxxx Facility"), among the Company,
each of the Banks and the Agent, an Event of Default (as defined in the Xxxxx
Facility) has occurred and the Required Banks (as defined in the Xxxxx Facility)
are exercising their right to terminate this Letter of Credit.
Funds under this Letter of Credit are available to you against your
Draft referring thereon to the number of this Letter of Credit accompanied by
your written and completed certificate signed by you in substantially the form
of Annex A or B attached thereto. The Draft shall be dated the date of its
presentation, and shall be presented or delivered by telecopier at the Agent's
office located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax No. (212)
000-0000, Attention: Xxxxx Xxxxx, Trade Finance
C-3
Department, with a copy to Fax No. (000) 000-0000, Attention: Xxxx Xxxxx (or
such other office address, phone number or attention party in the continental
United States designated by us by written notice delivered to you). Upon receipt
of the Draft at such office, all in strict conformity with the terms and
conditions of this Letter of Credit, on or prior to the termination hereof on a
Banking Day, and telephonic notice of the presentation of such Draft given prior
to or at the time of presentation to the Agent, telephone no. (000) 000-0000
(Attention: Xxxxx Xxxxx, Trade Finance Department) and telephone no. (212)
000-0000 (Attention: Xxxx Xxxxx) (or such other number or attention party which
may be designated by the Agent by written notice delivered to you), each Bank
agrees to honor the Draft by 2:00 P.M. on the fifth Banking Day thereafter in
accordance with your payment instructions in an amount equal to its Pro Rata
Share of the drawing thereunder, provided that in no event shall such amount
exceed such Bank's Letter of Credit Commitment (as such Letter of Credit
Commitment may be reduced from time to time pursuant to the terms of this Letter
of Credit), by payment to you in same day funds of such amount (which payment
may be effected by such Bank through the Agent; provided, however, that the
Agent shall have no obligation to you to honor any draft (except to the extent
of its Pro Rata Share of the drawing hereunder in its capacity as a "Bank")). If
the Agent receives the Draft at such office, all in strict conformity with the
terms and conditions of this Letter of Credit, on or prior to the termination
hereof, after 11:00 A.M. (New York City time), on a Banking Day, or no
telephonic notice is given of the presentation, each Bank agrees to honor the
same by 2:00 P.M. on the sixth Banking Day thereafter in accordance with your
payment instructions in an amount equal to its Pro Rata Share of the drawing
thereunder, provided that in no event shall such amount exceed such Bank's
Letter of Credit Commitment (as such Letter of Credit Commitment may be reduced
from time to time in pursuant to the terms of this Letter of Credit), by payment
to you in same day funds on such day of such amount (which payment may be
effected by such Bank through the Agent; provided, however, that the Agent shall
have no obligation to you to honor any draft (except to the extent of its Pro
Rata Share of the drawing hereunder in its capacity as a "Bank")).
This Letter of Credit shall automatically terminate upon the
earliest of (i) our honoring your Draft presented hereunder, (ii) twenty days
following the delivery of the Termination Notice, provided that any Draft
presented by you hereunder, on or before six Banking Days prior to such 20th
day, in strict conformity with the terms and conditions of this Letter of Credit
has been honored by the Banks, (iii) the Maturity Date, provided that any Draft
presented by you hereunder, on or before six Banking Days prior to such date, in
strict conformity with the terms and conditions of this Letter of Credit prior
to such termination has been honored by the Banks, or (iv) upon the return or
surrender of the original of this Letter of Credit by you for termination or
cancellation, together with your cover letter, stating that this Letter of
Credit can be terminated or cancelled.
This Letter of Credit sets forth in full the undertaking of the
Banks, and such undertaking shall not in any way be modified, amended, amplified
or limited by reference to any document, instrument or agreement referred to
herein, except only the certificates and the Draft referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except for such certificates and such Draft.
This Letter of Credit may be executed by different Banks in separate
counterparts, each of which taken together shall constitute one and the same
Letter of Credit. The obligations of the Banks hereunder shall be several and
not joint. The refusal or inability of any Bank to honor a
C-4
drawing hereunder shall not affect the obligation of any other Bank to honor a
drawing in accordance herewith.
You hereby agree and acknowledge that from time to time each of the
Banks hereunder may assign to one or more "Eligible Assignees" (as defined
below) all or a portion of its obligations under this Letter of Credit. Upon
receipt of an assignment and acceptance agreement executed by an assigning Bank
and an assignee, in which the assignee represents that it is an "Eligible
Assignee", you shall, within five Banking Days after receipt thereof, return
this Letter of Credit to the Agent in exchange for a new Letter of Credit
executed by all of the Banks having Letter of Credit Commitments hereunder,
including, without limitation, such Eligible Assignee. "Eligible Assignee" means
an assignee which is any bank, insurance company or financial institution
organized under the laws of the United States or any state thereof acting for
its own account, which (a) is regularly engaged in the business of making loans
in transactions similar to this Agreement, (b) has a consolidated net worth in
excess of US$200,000,000, and (c) has been approved by (i) the Agent; (ii)
unless an Event of Default (as defined in the Xxxxx Facility) has occurred and
is continuing at the time any assignment is effected in accordance with Section
8.07 of the Xxxxx Facility, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however that no consent of the Borrower shall be
required (x) in the event of a change of ownership or control of the Borrower or
(y) in the case of any assignment to (1) another Bank hereunder, (2) an
affiliate of a Bank or (3) the Federal Reserve; and (iii) to the extent that
such Eligible Assignee is not rated at least A- by S&P and A3 by Xxxxx'x, or
such Eligible Assignee following such assignment shall hold more than
US$20,000,000 of the total Letter of Credit Commitments hereunder, you.
Notwithstanding anything to the contrary herein, in no case shall either the
Borrower or an affiliate of the Borrower qualify as an Eligible Assignee.
This Letter of Credit shall be governed by the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce, Publication No. 500, and to the extent of matters not covered thereby,
the laws of the State of New York, including, without limitation, the Uniform
Commercial Code as in effect in the State of New York.
Communications with respect to this Letter of Credit, including,
without limitation, the delivery of any Reduction Notice or Termination Notice,
shall be in writing and shall be addressed to, if to the Agent, Deutsche Bank
AG, New York Branch, as Agent, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Fax No. (000) 000-0000, Attention: Xxxxx Xxxxx, Trade Finance Department, with a
copy to Fax No. (000) 000-0000, Attention: Xxxx Xxxxx (or such other office
address, phone number or attention party in the continental United
C-5
States designated by the Agent by written notice to you) or, if to you, at the
address set forth above, and, shall in either case, specifically refer to the
number of this Letter of Credit.
This Letter of Credit is nontransferable.
Very truly yours,
Letter of Credit
Commitment: Pro Rata Share:
US$34,000,000 35.789473685% DEUTSCHE BANK AG, NEW YORK BRANCH
By
--------------------------------------
Name:
Title:
By
--------------------------------------
Name:
Title:
US$16,000,000 16.842105263% NATIONSBANK, N.A.
By
--------------------------------------
Name:
Title:
C-6
US$15,000,000 15.789473684% BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, LIMITED
By
--------------------------------------
Name:
Title:
US$15,000,000 15.789473684% THE FUJI BANK, LIMITED
By
--------------------------------------
Name:
Title:
US$15,000,000 15.789473684% WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
--------------------------------------
Name:
Title:
By
--------------------------------------
Name:
Title:
_____________ ____
US$95,000,000 100%
C-7
Acknowledged by:
DEUTSCHE BANK AG,
NEW YORK BRANCH, as Agent
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
ANNEX A
CERTIFICATE FOR DRAWING IN CONNECTION
WITH THE PAYMENT OF THE REDEMPTION PRICE
WITH RESPECT TO THE 126,800,000 CLASS A SPECIAL
SHARES (THE "PALLADIUM SECURITIES") ISSUED
BY PALLADIUM FINANCE CORPORATION I ("FINANCECO I")
IN CONNECTION WITH A TENDER OR CALL
UNDER THE PUT AGREEMENT
Irrevocable Letter of Credit No. ________________
The undersigned, a duly authorized officer of [name of Beneficiary
Agent] (the "Beneficiary Agent"), hereby certifies to Deutsche Bank AG, New York
Branch, as Agent (the "Agent") for each of the Banks party (the "Banks") to the
Letter of Credit (as hereinafter defined) and to each such Bank, with reference
to Irrevocable Letter of Credit No. _______ (the "Letter of Credit", the terms
defined therein and not otherwise defined herein being used herein as therein
defined) issued by each of the Banks in favor of the Beneficiary Agent, that:
(1) The Beneficiary Agent is the agent for the holders (each a
"Holder" and collectively, the "Holders") of [number] shares of the
Palladium Securities (each being a "Share" and collectively being, the
"Shares"), none of which to the Beneficiary Agent's knowledge are held of
record by FinanceCo I or the Company (or any affiliate thereof) or held
for the account of any such party.
(2) The Beneficiary Agent is making a drawing under the Letter of
Credit with respect to the redemption payment of C$_____________ due to
the Holders by the Company pursuant to the Put Agreement in respect of the
Shares.
(3) The redemption price for the Palladium Securities is C$
___________ per Share, and C$ ___________ in the aggregate for the Shares
being redeemed in accordance with the Put Agreement. The currency
equivalent of the redemption price is, as determined by the Beneficiary
Agent in accordance with the Put Agreement, US$______________ per Share,
and US$__________ in the aggregate for the Shares being so redeemed.
(4) The amount of the Draft accompanying this Certificate is equal
to US$________ (the same amount specified in paragraph (3) above). Such
amount was computed in compliance with the terms and conditions of the Put
Agreement and does
C-A-2
not exceed the amount available to be drawn by the Beneficiary Agent under
the Letter of Credit.
IN WITNESS WHEREOF, the Beneficiary Agent has executed and delivered
this Certificate as of the __ day of _____________, ____.
[NAME OF BENEFICIARY AGENT],
as Beneficiary Agent
By
--------------------------------------
Name:
Title:
ANNEX B
CERTIFICATE FOR DRAWING IN CONNECTION
WITH THE PAYMENT OF THE REDEMPTION PRICE
WITH RESPECT TO THE 126,800,000 CLASS A SPECIAL
SHARES (THE "PALLADIUM SECURITIES") ISSUED
BY PALLADIUM FINANCE CORPORATION I ("FINANCECO I") UPON
TERMINATION OR EXPIRATION OF THE LETTER OF CREDIT
Irrevocable Letter of Credit No. ________________
The undersigned, a duly authorized officer of [name of Beneficiary
Agent] (the "Beneficiary Agent"), hereby certifies to Deutsche Bank AG, New York
Branch, as Agent (the "Agent") for each of the Banks party (the "Banks") to the
Letter of Credit (as hereinafter defined) and to each such Bank, with reference
to Irrevocable Letter of Credit No. _______ (the "Letter of Credit", the terms
defined therein and not otherwise defined herein being used herein as therein
defined) issued by each of the Banks in favor of the Beneficiary Agent, that:
(1) The Beneficiary Agent is the agent for the holders (each a
"Holder") and collectively, the "Holders") of [number] shares of the
Palladium Securities (each a "Share") and collectively, the "Shares"),
none of which, to the Beneficiary Agent's knowledge, are held of record by
FinanceCo I or the Company (or any affiliate thereof) or held for the
account of any such party.
(2) The Beneficiary Agent is making a drawing under the Letter of
Credit with respect to the redemption payment of C$__________ due to the
Holders by the Company pursuant to the Put Agreement as a result of (a)
the delivery by the Agent of a Termination Notice, certifying that an
Event of Default has occurred under the Xxxxx Facility, or (b) as a result
of the expiration of the Letter of Credit due to the occurrence of the
Maturity Date within twenty days of the date of this Certificate.
(3) The redemption price for the Palladium Securities is C$
___________ per Share, and C$ ___________ in the aggregate for the Shares
being redeemed in accordance with the Put Agreement. The currency
equivalent of the redemption price is, as determined by the Beneficiary
Agent in accordance with the Put Agreement, US$______________ per Share,
and US$__________ in the aggregate for the Shares being so redeemed.
(4) The amount of the Draft accompanying this Certificate is equal
to US$________ (the same amount specified in paragraph (3) above). Such
amount was
C-B-2
computed in compliance with the terms and conditions of the Put Agreement
and does not exceed the amount available to be drawn by the Beneficiary
Agent under the Letter of Credit.
IN WITNESS WHEREOF, the Beneficiary Agent has executed and delivered
this Certificate as of the __ day of _____________, ____.
[NAME OF BENEFICIARY AGENT],
as Beneficiary Agent
By
--------------------------------------
Name:
Title:
ANNEX C
CERTIFICATE FOR THE REDUCTION OF AMOUNTS
AVAILABLE UNDER IRREVOCABLE LETTER OF CREDIT
NO. ___________ DATED __________, ____
The undersigned, a duly authorized officer of [name of Beneficiary
Agent] (the "Beneficiary Agent"), hereby certifies to Deutsche Bank AG, New York
Branch, as Agent (the "Agent") for each of the Banks party (the "Banks") to the
Letter of Credit (as hereinafter defined) and to each such Bank, with reference
to Irrevocable Letter of Credit No. _______ (the "Letter of Credit", the terms
defined therein and not otherwise defined herein being used herein as therein
defined) issued by each of the Banks in favor of the Beneficiary Agent, that:
(1) The Beneficiary Agent is the agent for the holders of [number]
shares of the Palladium Securities, none of which, to the Beneficiary
Agent's knowledge, are held of record by FinanceCo I or the Company (or
any affiliate thereof) or held for the account of any such party.
(2) The Available Amount of the Letter of Credit is hereby, pursuant
to the terms of the Put Agreement, reduced by US$_____ to US$_____ upon
receipt by the Agent of this Certificate.
(3) The above amounts were computed in compliance with the terms and
conditions of the Put Agreement.
IN WITNESS WHEREOF, the Beneficiary Agent has executed and delivered
this Certificate this __ day of _______________, ____.
[NAME OF BENEFICIARY],
as Beneficiary Agent
By
-------------------------------------
Name:
Title:
ANNEX D
NOTICE OF TERMINATION
[To be typed on letterhead of Deutsche Bank AG, New York Branch]
[Date]
To: [Name and Address of Beneficiary Agent]
Ladies and Gentlemen:
We refer to Irrevocable Letter of Credit No. __________ (the "Letter of Credit",
the terms defined therein and not otherwise defined herein being used herein as
therein defined) issued by [names of banks] (the "Banks") in your favor. We
hereby notify you that pursuant to Section 6.01 of the Term Loan and Letter of
Credit and Reimbursement Agreement, dated as of March 26, 1997, among Xxxxx
Corporation, as Borrower, the Banks party thereto, and Deutsche Bank AG, New
York Branch, as Agent (such agreement, as amended, modified or supplemented from
time to time, being the "Xxxxx Facility"), an Event of Default (as defined in
the Xxxxx Facility) has occurred and the Required Banks (as defined in the Xxxxx
Facility) are exercising their right to terminate the Letter of Credit. This
notice serves as the Notice of Termination provided for under the Letter of
Credit.
We hereby notify you that in accordance with the terms of the Letter of Credit,
such Letter of Credit shall terminate on the twentieth day following the date
hereof.
Yours faithfully,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
C-D-2
The undersigned hereby acknowledges
receipt of this notice.
[NAME OF BENEFICIARY AGENT]
By
---------------------------------
Name:
Title
EXHIBIT D - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Term Loan and Letter of Credit and
Reimbursement Agreement dated as of March 26, 1997 (as amended or modified from
time to time, the "Agreement") among Xxxxx Corporation, a Delaware corporation
(the "Borrower"), the Banks (as defined in the Agreement) and Deutsche Bank AG,
New York Branch, as agent for the Banks (the "Agent"). Terms defined in the
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations (including, without
limitation, all or a portion of its Commitments, the Advances owing to it
and the Note or Notes held by it) under the Loan Documents as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Loan Documents. After
giving effect to such sale and assignment, the Assignee's Term Commitment
and Letter of Credit Commitment and the amount of the Advances owing to
the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or
any other instrument or document furnished pursuant thereto; (iii) makes
no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Loan
Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note[s] held by the Assignor and requests that the
Agent exchange such Note[s] for [a] new Note[s] payable to the order of
the Assignee [and the Assignor].
3. The Assignee (i) confirms that it has received a copy of the Loan
Documents, together with copies of the Financial Statements referred to in
Section 4.01 of the Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the
D-2
Agent, the Assignor 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 action under the Loan
Documents; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Loan Documents are required to be performed by it as a Bank;
(vi) agrees that it will execute the Replacement Letter of Credit; and
(vii) attaches any U.S. Internal Revenue Service forms required under
Section 2.13 of the Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered [to the Beneficiary Agent for the Beneficiary Agent's
consent thereto, and thereafter delivered]* together with the processing
and recordation fee of US$3,000, to the Agent for acceptance and recording
by the Agent. Promptly thereafter, the Agent shall arrange for the
issuance of the Replacement Letter of Credit and the effective date for
this Assignment and Acceptance (the "Effective Date") shall be the date of
such issuance, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Loan Documents
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Bank thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Loan
Documents in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Loan Documents for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
----------
* If such approval is required pursuant to Section 8.07(a) of the Agreement.
D-3
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
[NAME OF ASSIGNOR], as Assignor
By
------------------------------
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By
------------------------------
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]* this
__________ day of _______________, ____
DEUTSCHE BANK AG, NEW YORK BRANCH, as Agent
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
[Approved this __________ day
of _______________, ____
XXXXX CORPORATION
By
-------------------------------]**
Title:
[Approved this __________ day
of _______________, ____
[NAME OF BENEFICIARY AGENT]
By
-------------------------------]
Title:]***
----------
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (h) of the definition of "Eligible Assignee".
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (h) of the definition of "Eligible Assignee".
*** Required if the Beneficiary=s consent is required pursuant to Section
8.07(a)(iii) of the
(continued...)
D-5
----------
(...continued)
Agreement.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Term Commitment: $_______________
Assignee's Letter of Credit Commitment: $_______________
Aggregate outstanding principal amount of
Advances assigned: $_______________
Effective Date*: _______________, 199_
----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Letterhead of Xxxxx Corporation]
April 1, 1997
To each of the Banks parties
to the Agreement dated
as of March 26, 1997
among Xxxxx Corporation,
said Banks and Deutsche Bank AG, New York Branch,
as Agent for said Banks, and
to Deutsche Bank AG, New York Branch, as Agent
Xxxxx Corporation
Ladies and Gentlemen:
I am Senior Vice President and General Counsel to Xxxxx Corporation,
a Delaware corporation (the "Company"). This opinion is furnished to you
pursuant to Section 3.01(h)(vi) of the Term Loan and Letter of Credit and
Reimbursement Agreement, dated as of March 26, 1997 (the "Agreement"), among the
Company, the Banks party thereto, and Deutsche Bank AG, New York Branch, as
Agent. Capitalized terms used herein that are defined in the Agreement shall
have the same meanings therein defined.
In furnishing this opinion, I have examined and relied upon
originals or copies, certified or otherwise identified to my satisfaction as
being true copies, of such instruments, documents and certificates of officers
of the Company or of government officials, and have conducted such
investigations of fact and law, as I have deemed necessary or appropriate as the
basis for the opinions hereinafter expressed, including, without limitation, (i)
the Restated Certificate of Incorporation and By-Laws of the Company, (ii) the
Agreement, and (iii) the form of the Notes. With respect to questions of fact
material to any opinions expressed herein, I have relied solely upon inquiries
made of the appropriate officers of the Company and its Subsidiaries. Where and
as this opinion states conclusions based upon the absence of facts, I have
received in the course of my employment no contrary information and would expect
to receive such information if an officer of the Company had notice thereof.
I have investigated such questions of law for the purpose of
rendering this opinion as I have deemed necessary. I am admitted to practice law
in the State of New York
E-2
and express no opinion as to any question of law other than with respect to the
laws of the State of New York, the corporate laws of the State of Delaware, and
the laws of the United States of America. Wherever in this opinion the phrase
"to the best of my knowledge" is used, it shall be construed as being limited to
my actual knowledge and the actual knowledge of those attorneys in my office who
have directly participated in this matter.
Based upon and subject to the foregoing, I am of the opinion that:
I. The Company and each Material Subsidiary is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation, has all requisite corporate power and authority to own its Property
and to carry on its business as now conducted, and is in good standing and
authorized to do business in each jurisdiction in which there is a reasonable
likelihood of a Material Adverse Effect as a consequence of the failure to be so
authorized.
1. The Company has full corporate power and authority to enter into,
execute, deliver and carry out the terms of the Agreement and the Notes, and to
make the borrowings and to incur the other obligations contemplated thereby, to
execute, deliver and carry out the terms of the Notes and to incur the
obligations provided for therein, all of which have been duly authorized by all
proper and necessary corporate action and are not in violation of its Restated
Certificate of Incorporation and By-Laws.
2. No consent, authorization or approval of, filing with, notice to,
or examination by, stockholders, any Governmental Body or any other Person
(except for those which have been obtained, made or given) is required to
authorize, or is required in connection with the execution, delivery and
performance of the Agreement and the Notes or is required as a condition to the
validity or enforceability of the Agreement and the Notes. No provision of any
applicable statute, law (including, without limitation, any applicable usury or
similar law), rule or regulation of any Governmental Body will prevent the
execution, delivery or performance of, or affect the validity of, the Agreement
and the Notes.
3. The Agreement constitutes, and the Notes, when issued and
delivered pursuant thereto for value received, will constitute, the valid and
legally binding obligations of the Company enforceable in accordance with their
respective terms, except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of equity,
including, without limitation, principles of materiality, reasonableness and
good faith (regardless of whether considered in a proceeding in equity or an
action at law), and (ii) that the enforceability of any provision of the
Agreement providing for indemnification might be limited by considerations of
public policy.
E-3
4. There are no actions, suits, arbitration proceedings or claims
pending or, to the best of my knowledge, threatened against the Company or any
Subsidiary, or maintained by the Company or any Subsidiary, at law or in equity,
before any Governmental Body as to which there is a reasonable likelihood of a
Material Adverse Effect. There are no proceedings pending or, to the best of my
knowledge, threatened against the Company or any Subsidiary which call into
question the validity or enforceability of the Agreement or the Notes.
5. To the best of my knowledge, neither the Company nor any
Subsidiary is in default under any mortgage, indenture, contract or agreement to
which it is a party or by which it or any of its Property is bound, as to which,
taken as a whole, there is a reasonable likelihood of a Material Adverse Effect.
The execution, delivery or carrying out of the terms of the Agreement and the
Notes will not constitute a default under, conflict with, require any consent
under (other than consents which have been obtained), or result in the creation
or imposition of, or obligation to create, any Lien upon the Property of the
Company or any Subsidiary pursuant to the terms of any such mortgage, indenture,
contract, agreement, judgment, decree or order as to which, if not consented to,
waived or obtained, there is a reasonable likelihood of a Material Adverse
Effect.
6. To the best of my knowledge, neither the Company nor any
Subsidiary is in default with respect to any judgment, order, writ, injunction,
decree or decision of any Governmental Body as to which there is a reasonable
likelihood of a Material Adverse Effect and the Company and each Subsidiary is
complying in all material respects with all applicable statutes and regulations,
including ERISA, of all Governmental Bodies, a violation of which is reasonably
likely to have a Material Adverse Effect.
7. Neither the Company nor any Subsidiary (a) (i) is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or is (ii) an investment company, or an affiliated person or promoter
of or principal underwriter for an investment company or an affiliated person of
such person, promoter or principal underwriter or controlled by, controlling or
under common control with an investment company all within the meaning of the
Investment Company Act of 1940, or (b) is subject to any statute or regulation
which prohibits or restricts the incurrence of Indebtedness under the Agreement
or the Notes, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
E-4
8. To the best of my knowledge, neither the Company nor any
Subsidiary has received written notice or otherwise learned of any claim,
demand, action, report or investigation indicating or concerning any potential
or actual liability as to which individually or in the aggregate there is a
reasonable likelihood of a Material Adverse Effect arising in connection with
any non-compliance with or violation of the requirements of any Environmental
Law.
Very truly yours,
Xxxxx X. Xxxx
Senior Vice President
& General Counsel
[EXECUTION COPY]
U.S. $95,000,000
TERM LOAN AND LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
Dated as March 26, 1997
Among
XXXXX CORPORATION
as Borrower
and
THE BANKS NAMED HEREIN
and
DEUTSCHE BANK AG, NEW YORK BRANCH
as Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 1
SECTION 1.02. Computation of Time Periods................................... 19
ARTICLE II
AMOUNTS AND TERMS OF THE BORROWING
SECTION 2.01. Term Borrowing................................................ 19
SECTION 2.02. Making the Term Borrowing..................................... 20
SECTION 2.03. Issuance of and Drawing Under the Letter of Credit............ 21
SECTION 2.04. Agent's Fees.................................................. 23
SECTION 2.05. Repayment..................................................... 23
SECTION 2.06. Interest...................................................... 23
SECTION 2.07. Interest Rate Determination................................... 24
SECTION 2.08. Optional Conversion of Advances............................... 25
SECTION 2.09. Optional Prepayments; Reduction of Letter of Credit
Commitment ................................................... 26
SECTION 2.10. Increased Costs............................................... 26
SECTION 2.11. Illegality.................................................... 27
SECTION 2.12. Payments and Computations..................................... 27
SECTION 2.13. Taxes......................................................... 28
SECTION 2.14. Replacement of Bank in Event of Adverse Condition............. 31
SECTION 2.15. Sharing of Payments, Etc...................................... 31
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01......... 32
SECTION 3.02. Conditions Precedent to the Borrowing......................... 34
SECTION 3.03. Conditions Precedent to Issuance of Letter of Credit.......... 34
SECTION 3.04. Determinations Under Section 3.01, 3.02 and 3.03.............. 35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ii
Page
SECTION 4.01. Representations and Warranties of the Borrower................ 35
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants......................................... 40
SECTION 5.02. Negative Covenants............................................ 45
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................. 48
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default...... 50
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action...................................... 51
SECTION 7.02. Agent's Reliance, Etc......................................... 51
SECTION 7.03. Deutsche Bank and Affiliates.................................. 52
SECTION 7.04. Bank Credit Decision.......................................... 52
SECTION 7.05. Indemnification............................................... 52
SECTION 7.06. Successor Agent............................................... 53
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................... 53
SECTION 8.02. Notices, Etc.................................................. 54
SECTION 8.03. No Waiver; Remedies........................................... 54
SECTION 8.04. Costs and Expenses............................................ 54
SECTION 8.05. Right of Set-off.............................................. 56
SECTION 8.06. Binding Effect................................................ 56
SECTION 8.07. Assignments and Participations................................ 56
SECTION 8.08. Confidentiality............................................... 59
SECTION 8.09. No Liability of the Banks..................................... 59
SECTION 8.10. Governing Law................................................. 60
iii
Page
SECTION 8.11. Execution in Counterparts..................................... 60
SECTION 8.12. Jurisdiction, Etc............................................. 60
SECTION 8.13. Waiver of Jury Trial.......................................... 61
iv
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 1.01 - Excluded Rent Expenses
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(a) - Material Subsidiaries
Schedule 4.01(h) - Tax Liabilities
Schedule 5.02(c) - Existing Subsidiary Indebtedness
Exhibits
--------
Exhibit A - Form of Promissory Note
Exhibit B-1 - Form of Notice of Term Borrowing
Exhibit B-2 - Form of Notice of Issuance
Exhibit C - Form of Letter of Credit
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Opinion of Counsel for the Borrower
Exhibit F - Revenue Ruling
