CONFORMED COPY
$13,000,000,000
CREDIT AGREEMENT
dated as of
February 10, 1997
among
Norfolk Southern Corporation,
The Banks From Time to Time Parties Hereto,
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
and
Xxxxxxx Xxxxx Capital Corporation,
as Documentation Agent
-----------------------------
X.X. Xxxxxx Securities Inc.
and
Xxxxxxx Xxxxx & Co.,
Arrangers
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITION
SECTION 1.01. Definitions....................................... 1
SECTION 1.02. Accounting Terms and Determinations.............. 22
SECTION 1.03. Classes and Types of Loans and Borrowings........ 22
ARTICLE 2
THE CREDIT
SECTION 2.01. Commitments to Lend.............................. 23
SECTION 2.02. Notice of Committed Borrowings................... 24
SECTION 2.03. Money Market Borrowings.......................... 24
SECTION 2.04. Notice to Banks; Funding of Loans................ 28
SECTION 2.05. Maturity of Loans................................ 29
SECTION 2.06. Interest Rates................................... 30
SECTION 2.07. Regulation D Compensation........................ 33
SECTION 2.08. Facility Fees.................................... 34
SECTION 2.09. Optional Termination or Reduction of
Commitments.................................... 34
SECTION 2.10. Method of Electing Interest Rates................ 34
SECTION 2.11. Optional Prepayments............................. 36
SECTION 2.12. Mandatory Reduction and Termination of
Commitments; Mandatory Prepayments............. 36
SECTION 2.13. General Provisions as to Payments................ 38
SECTION 2.14. Funding Losses................................... 39
SECTION 2.15. Computation of Interest and Fees................. 39
SECTION 2.16. Registry......................................... 39
ARTICLE 3
CONDITIONS TO BORROWING
SECTION 3.01. First Borrowing Date............................. 40
SECTION 3.02. Acquisition Date................................. 41
SECTION 3.03. Merger Date...................................... 43
SECTION 3.04. Borrowings....................................... 43
SECTION 3.05. Waiver by Banks.................................. 44
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.................... 44
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SECTION 4.02. Corporate and Governmental Authorization;
No Contravention............................... 45
SECTION 4.03. Binding Effect................................... 45
SECTION 4.04. Financial Information............................ 45
SECTION 4.05. Litigation....................................... 46
SECTION 4.06. Compliance with Laws............................. 46
SECTION 4.07. Environmental Matters............................ 47
SECTION 4.08. Taxes............................................ 47
SECTION 4.09. Significant Subsidiaries......................... 47
SECTION 4.10. Not an Investment Company or a Holding
Company........................................ 48
SECTION 4.11. Full Disclosure.................................. 48
SECTION 4.12. Representations in Other Loan Documents
True and Correct............................... 48
SECTION 4.13. Ownership of Property, Liens..................... 49
SECTION 4.14. No Default....................................... 49
ARTICLE 5
COVENANTS
SECTION 5.01. Information...................................... 49
SECTION 5.02. Maintenance of Property; Insurance............... 53
SECTION 5.03. Conduct of Business and Maintenance
of Existence................................... 53
SECTION 5.04. Compliance with Laws............................. 53
SECTION 5.05. Payment of Obligations........................... 54
SECTION 5.06. Inspection of Property, Books and Records........ 54
SECTION 5.07. Financial Covenants.............................. 54
SECTION 5.08. Negative Pledge.................................. 56
SECTION 5.09. Consolidations, Mergers and Sales of Assets...... 57
SECTION 5.10. Use of Proceeds.................................. 59
SECTION 5.11. Limitation on Debt............................... 59
SECTION 5.12. Transactions with Affiliates..................... 60
SECTION 5.13. No Modification of the Voting Trust Agreement
Without Bank Consent........................... 61
SECTION 5.14. Limitation on Restrictions Affecting
Subsidiaries................................... 61
SECTION 5.15. Fiscal Year...................................... 61
SECTION 5.16. Hedging Facilities............................... 62
SECTION 5.17. Restricted Investments........................... 62
SECTION 5.18. Consummation..................................... 62
SECTION 5.19. Additional Guarantors............................ 62
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ARTICLE 6
DEFAULT
SECTION 6.01. Events of Default................................ 62
SECTION 6.02. Notice of Default................................ 65
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization.................... 65
SECTION 7.02. Agents and Affiliates............................ 66
SECTION 7.03. Action by Administrative Agent................... 66
SECTION 7.04. Consultation with Experts........................ 66
SECTION 7.05. Liability of Agents.............................. 66
SECTION 7.06. Indemnification.................................. 66
SECTION 7.07. Credit Decision.................................. 67
SECTION 7.08. Successor Agent.................................. 67
SECTION 7.09. Agents' Fees..................................... 67
ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair........................... 68
SECTION 8.02. Illegality....................................... 68
SECTION 8.03. Increased Cost and Reduced Return................ 69
SECTION 8.04. Taxes............................................ 71
SECTION 8.05. Base Rate Loans Substituted for Affected
Fixed Rate..................................... 74
SECTION 8.06. Substitution of Bank............................. 74
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices.......................................... 75
SECTION 9.02. No Waivers....................................... 75
SECTION 9.03. Expenses; Indemnification........................ 75
SECTION 9.04. Sharing of Set-Offs.............................. 76
SECTION 9.05. Amendments and Waivers........................... 76
SECTION 9.06. Successors and Assigns........................... 77
SECTION 9.07. Governing Law; Submission to Jurisdiction,
WAIVER OF JURY TRIAL........................... 79
SECTION 9.08. Counterparts; Integration; Effectiveness......... 79
SECTION 9.09. Confidentiality.................................. 79
SECTION 9.10. Termination...................................... 80
iii
SECTION 9.11. Collateral....................................... 80
SECTION 9.12. Representations of Banks......................... 80
Commitment Schedule
Pricing Schedule
Exhibit A-1 - Borrower Pledge Agreement
Exhibit A-2 - Subsidiary Pledge Agreement
Exhibit B - Subsidiary Guarantee Agreement
Exhibit C - Note
Exhibit D-1 - Opinion of Special Counsel for the Borrower
(First Borrowing Date)
Exhibit D-2 - Opinion of General Counsel of the Borrower
(First Borrowing Date)
Exhibit D-3 - Opinion of Special Counsel for the Borrower
(Acquisition Date)
Exhibit D-4 - Opinion of General Counsel of the Borrower
(Acquisition Date)
Exhibit D-5 - Opinion of Xxxxxxxx Xxxxx & Xxxxx
Exhibit E - Opinion of Special Counsel for the Agents
Exhibit F - Assignment and Assumption Agreement
Exhibit G - Money Market Quote Request
Exhibit H - Invitation for Money Market Quotes
Exhibit I - Money Market Quote
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CREDIT AGREEMENT
AGREEMENT dated as of February 10, 1997, among NORFOLK SOUTHERN
CORPORATION, the BANKS from time to time parties hereto, XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent and XXXXXXX XXXXX CAPITAL
CORPORATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITION
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Acquisition" means the acquisition by the Borrower, directly or
indirectly (including without limitation through the Voting Trust), of Conrail
pursuant to the Second Offer and the Merger.
"Acquisition Date" means the date of the first Borrowing of the Term
Loans hereunder. The Acquisition Date may occur on or after the First Borrowing
Date.
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.06(b).
"Administrative Agent" means Xxxxxx Guaranty Trust Company of New York
in its capacity as Administrative Agent for the Banks under the Loan Documents,
and its successors in such capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person") or
(ii) any
Person (other than the Borrower or a Subsidiary) which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"CONTROL" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means the Administrative Agent or the Documentation Agent, and
"Agents" means both of them.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means, with respect to Loans of any Type at any
time, the applicable percentage rate per annum set forth in the Pricing
Schedule with respect to Loans of such Type which is applicable at such time in
accordance with the Pricing Schedule; provided that (i) the Applicable Margin
on any date with respect to any Loan shall be the sum of the percentage so
determined in accordance with the Pricing Schedule plus 2.00%, if on such date
a Default exists under Section 6.01(a) with respect to such Loan and (ii) the
Applicable Margin on any date with respect to all Loans shall be the sum of the
percentage so determined in accordance with the Pricing Schedule plus 2.00%, if
on such date an Event of Default exists under Section 6.01(a).
"Assessment Rate" has the meaning set forth in Section 2.06(b).
"Asset Sale" means any sale, lease or other disposition (including any
such transaction effected by way of merger or consolidation) by the Borrower or
any of its Subsidiaries of any asset (including without limitation any capital
stock held by the Borrower or such Subsidiary), including without limitation
any sale-leaseback transaction, whether or not involving a capital lease, but
excluding (i) dispositions to the Borrower or a Consolidated Subsidiary of the
Borrower, (ii) any sale, transfer or other disposition of inventory or obsolete
equipment in the ordinary course of business, (iii) any sale, lease or other
disposition (or series of related sales, leases or other dispositions) the Net
Cash Proceeds of which do not exceed $40,000,000 on an individual basis,
(iv)leases with respect to tangible property entered into in the ordinary
course of business, (v) any sale, transfer or other disposition of temporary
cash investments in the ordinary course of business, (vi) any sale, transfer or
other disposition of any assets if the Borrower notifies the Administrative
Agent promptly after the receipt of the proceeds thereof that such proceeds
will be committed by the Borrower and its Subsidiaries to be used to purchase
similar assets within three months of the date of such notice and will be so
used within twelve months of the date
2
of such notice, but only to the extent such proceeds are actually so used,
(vii) any sale, transfer or other disposition of any "margin stock" (within the
meaning of the Margin Regulations) for fair value, (viii) any dispositions
resulting in Major Property Insurance Proceeds and (ix) any transfer to the
Voting Trust of securities of Conrail or of a Subsidiary intended to be merged
with Conrail.
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each financial institution listed on the signature pages
hereof, each Assignee which becomes a Bank pursuant to Section 9.06(c), and
their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus Federal
Funds Rate for such day.
"Base Rate Loan" means a Committed Loan which bears interest at a rate
per annum based upon the Base Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election or the provisions of Section
2.06(e) or Article 8.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by the
Borrower.
"Borrower" means Norfolk Southern Corporation, a Virginia corporation,
its successors, and any Person with which the Borrower merges or consolidates,
or to which it sells substantially all of its assets, in accordance with
Section 5.09.
"Borrower's 1995 Form 10-K" means the Borrower's annual report on Form
10-K for 1995, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Borrower Pledge Agreement" means the Pledge Agreement to be entered
into between the Borrower and the Administrative Agent for the benefit of the
Secured Parties named therein, in substantially the form of Exhibit A-1, in
respect of the Trust Certificates (as defined in the Voting Trust Agreement),
if any, held by the Borrower, the capital stock of any Significant Subsidiary
owned directly by the Borrower and certain Debt held by the Borrower.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.06(b).
3
"CD Loan" means a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election.
"CD Rate" means a rate of interest determined pursuant to Section
2.06(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means The First Bank of Chicago, Wachovia Bank of
North Carolina and Xxxxxx Guaranty Trust Company of New York.
"Class" has the meaning set forth in Section 1.03.
"Closing Date" means the date this Agreement becomes effective in
accordance with Section 9.08(b).
"Collateral" means the collateral purported to be subject to the Liens
of the Collateral Documents.
"Collateral Documents" means the Pledge Agreements, any additional
pledges required to be delivered pursuant to the Loan Documents and any
instruments of assignment or other instruments or agreements executed pursuant
to the foregoing.
"Commitment" means any Term Loan Commitment or Revolving Credit
Commitment, and "Commitments" means any or all of the foregoing, as the context
may require.
"Commitment Schedule" means the Schedule attached hereto and identified
as such.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.01.
"Conrail" means Conrail Inc., a Pennsylvania corporation, and its
successors (including, without limitation, the survivor of the Merger, whether
or not Conrail, Inc.).
"Consolidated Capital Expenditures" means, for any period, the
expenditures for additions to property, plant and equipment and other capital
expenditures of the Borrower and its Consolidated Subsidiaries for such period,
as the same are or would be set forth in a consolidated statement of cash flows
of the Borrower and its Consolidated Subsidiaries for such period.
"Consolidated EBITDA" means, for any fiscal period, Consolidated Net
Income for such period plus, to the extent deducted in determining such
Consolidated Net Income for such period, the aggregate amount of (i)
Consolidated Interest
4
Expense, (ii) consolidated income tax expense, (iii) consolidated depreciation
and amortization expense and (iv) special charges, restructuring charges and
charges taken in connection with unusual or infrequent accounting adjustments
and minus, to the extent reflected in Consolidated Net Income, non-recurring
items of gain (it being understood that gains realized by the Borrower and its
Consolidated Subsidiaries upon sales of assets consistent with past practices
are not non-recurring for this purpose). On the basis set forth in the
immediately preceding sentence, (x) Consolidated EBITDA for the fiscal quarter
ended June 30, 1996 was $731,000,000 and (y) Consolidated EBITDA for the fiscal
quarter ended September 30, 1996 was $780,000,000.
"Consolidated Interest Expense" means, for any period, the
aggregate interest expense of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis for such period; provided that if any
determination of Consolidated Interest Expense is required to be made for any
period commencing prior to the Consummation Date, such determination shall be
made on a pro forma basis as if all Debt outstanding at the date of
determination had been outstanding since the first day of the relevant period.
On the basis set forth in the immediately preceding sentence, Consolidated
Interest Expense for the fiscal quarters ended June 30, 1996 and September 30,
1996, respectively, was $265,000,000.
"Consolidated Net Income" means, for any fiscal period, the net income
of the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis for such period, exclusive, solely for purposes of the definition of
Consolidated EBITDA, of the effect of any extraordinary gain or loss.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries as of
such date.
"Consolidated Subsidiary" means at any date with respect to any Person
, any Subsidiary or other entity the accounts of which would be consolidated
with those of such Person in its consolidated financial statements if such
statements were prepared as of such date. Unless otherwise specified, a
"Consolidated Subsidiary" shall be a Consolidated Subsidiary of the Borrower;
provided that, for purposes of Article 3 and Sections 4.04(c) and 5.07 and
related definitions as used for purposes thereof, on any date prior to the
Consummation Date, Conrail shall be deemed to be (and to have at all times
been) a wholly-owned Consolidated Subsidiary of the Borrower.
"Consummation Date" means the later of the Merger Date and the STB
Approval Date.
"Continuing Director" has the meaning set forth in Section 6.01(l).
5
"Debt" of any Person means at any date, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) all indebtedness of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v)
any obligation (whether fixed or contingent) to reimburse any bank or other
Person in respect of amounts paid or payable under a standby letter of credit,
(vi) any capital stock of such Person which is redeemable otherwise than at the
sole option of such Person, (vii) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, and
(viii) all Debt of others Guaranteed by such Person.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Documentation Agent" means Xxxxxxx Xxxxx Capital Corporation in its
capacity as Documentation Agent for the Banks hereunder.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
6
"Domestic Reserve Percentage" has the meaning set forth in Section
2.06(b).
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment, to the effect of
the environment on human health or to emissions, discharges or releases of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the transport, manufacture, processing,
distribution, use, treatment, storage, disposal or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Consolidated Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Consolidated Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.06(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of The
First National Bank of Chicago, Wachovia Bank of North Carolina and Xxxxxx
Guaranty Trust Company of New York.
7
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.07.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated as of
March 29, 1994, and amended and restated as of July 31, 1996, among the
Borrower, the banks parties thereto and Xxxxxx Guaranty Trust Company of New
York, as agent for such banks.
"Exposure" means, at any time as to any Bank, the sum of (i) such
Bank's Term Loan Commitment(s), plus (ii) the outstanding principal amount of
such Bank's Term Loans plus (iii) such Bank's Revolving Credit Commitment, if
still in existence, or the outstanding principal amount of such Bank's
Revolving Credit Loans and Money Market Loans, if its Revolving Credit
Commitment is no longer in existence.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Administrative
Agent.
"First Borrowing Date" means the date of the first Borrowing
hereunder. The First Borrowing Date may occur on or prior to the Acquisition
Date.
"First Offer" means the offer by the Offeror to purchase up to 9.9% of
the outstanding shares of Common Stock and Series A ESOP Convertible Junior
Preferred Stock of Conrail at $115 net per share pursuant to the First Offer to
Purchase.
"First Offer to Purchase" means the Offer to Purchase dated October
24, 1996 by the Offeror to the stockholders of Conrail, as supplemented as of
January 22, 1997, and as further amended from time to time in accordance with
its terms.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
8
"Group of Loans" means at any time a group of Loans of any Class
consisting of (i) all Loans of such Class which are Base Rate Loans at such
time or (ii) all Loans of such Class which are Euro-Dollar Loans or CD Loans
having the same Interest Period at such time, provided that, if a Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to Article
8, such Loan shall be included in the same Group or Groups of Loans from time
to time as it would have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Information Memorandum" means the Information Memorandum dated
October 28, 1996 furnished to the Banks in connection with this Agreement.
"Initial Conrail Investment" means the purchase by the Borrower,
directly or indirectly (including without limitation through the Voting Trust),
of up to (but not in excess of) 9.9% in the aggregate of the outstanding shares
of Common Stock and Series A ESOP Convertible Junior Preferred Stock of Conrail
pursuant to the First Offer.
"Interest Coverage Ratio" means, at any date, the ratio of (i)
Consolidated EBITDA less Net Consolidated Capital Expenditures to (ii)
Consolidated Interest Expense, in each case for the period of four consecutive
fiscal quarters most recently ended on or prior to such date.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice; provided that:
9
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d) below, end on
the last Euro-Dollar Business Day of a calendar month;
(c) no Interest Period for any Revolving Credit Loan shall extend
beyond the Revolving Credit Termination Date; and
(d) no Interest Period applicable to any Term Loan of any Class
shall extend beyond any date upon which is due any scheduled principal
payment in respect of the Term Loans of such Class unless the
aggregate principal amount of Term Loans of such Class represented by
Base Rate Loans, or by Fixed Rate Loans having Interest Periods that
will expire on or before such date, equals or exceeds the amount of
such principal payment.
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the applicable notice;
provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) or (c) below) which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day;
(b) no Interest Period for any Revolving Credit Loan shall extend
beyond the Revolving Credit Termination Date; and
(c) no Interest Period applicable to any Term Loan of any Class
shall extend beyond any date upon which is due any scheduled principal
payment in respect of the Term Loans of such Class unless the
aggregate principal amount of Term Loans of such Class represented by
Base Rate Loans, or by Fixed Rate Loans having Interest Periods that
will expire on or before such date, equals or exceeds the amount of
such principal payment.
10
(3) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of months
thereafter as the Borrower may elect in accordance with Section 2.03; provided
that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing, the
period commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 14 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Leverage Ratio" means, at any date, the ratio of Total Debt at such
date to Consolidated EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such date.
11
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan, a CD Loan, a Euro-Dollar Loan or a
Money Market Loan and "Loans" means any combination of the foregoing, as the
context may require; provided that, if any such Loan or Loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "Loan" shall refer to the combined principal amount
resulting from such combination or to each of the separate principal amounts
resulting from such subdivision, as the case may be.
"Loan Documents" means this Agreement, the Collateral Documents, the
Subsidiary Guarantee Agreement and any Notes delivered pursuant hereto.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Major Property Insurance Proceeds" means:
(i) the aggregate insurance proceeds from third parties in excess
of $25,000,000 received in connection with one or more related events
by the Borrower or any of its Subsidiaries under any insurance policy
maintained by the Borrower or any of its Subsidiaries covering losses
with respect to tangible real or personal property or improvements or
(ii) any award or other compensation in excess of $25,000,000
received with respect to any condemnation of property (or, in the case
of any transfer or disposition of property in lieu of condemnation,
the book value of such property) by the Borrower or any of its
Subsidiaries,
provided that such proceeds, award or other compensation shall not constitute
Major Property Insurance Proceeds if the Borrower notifies the Administrative
Agent promptly after the receipt thereof that such proceeds, award or other
compensation will be committed by the Borrower and its Subsidiaries to be used
to repair or replace the asset so affected within three months of the date of
such notice and will be so used
12
within twelve months of the date of such notice, but only to the extent such
proceeds, award or other compensation is actually so used.
"Margin Regulations" means Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System, as amended and in effect from time to
time.
"Material Adverse Change" has the meaning specified in Section 4.04(c).
"Material Debt" means Debt (other than under the Loan Documents ) of
the Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate principal amount exceeding
$50,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"Merger" means the "Proposed Merger" between Conrail and the Offeror
(or any other wholly-owned Subsidiary of the Borrower party to the Subsidiary
Pledge Agreement) as described and defined in the First Offer to Purchase,
pursuant to which Conrail shall become a wholly-owned Subsidiary of the
Borrower and its outstanding stock shall cease to be "margin stock" within the
meaning of the Margin Regulations.
"Merger Date" means the date of consummation of the Merger.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Bank may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
13
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Cash Proceeds" means, with respect to any Reduction Event, an
amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Reduction Event (including any cash
proceeds received as interest or similar income or other proceeds of any
noncash proceeds of any Asset Sale), less (a) any fees, costs and expenses
reasonably incurred by such Person in respect of such Reduction Event and (b)
if such Reduction Event is an Asset Sale, (i) the amount of any Debt secured by
a Lien on any asset disposed of in such Asset Sale and discharged from the
proceeds thereof, (ii) any taxes actually paid or to be payable by such Person
(as estimated by a senior financial or accounting officer of the Borrower,
giving effect to the overall tax position of the Borrower) in respect of such
Asset Sale, (iii) all payments made with respect to liabilities associated with
the assets which are the subject of the Asset Sale, including, without
limitation, trade payables and other accrued liabilities, (iv) appropriate
amounts to be provided by such Person or any Subsidiary thereof, as the case
may be, as a reserve in accordance with generally accepted accounting
principles against any liabilities associated with such assets and retained by
such Person or any Subsidiary thereof, as the case may be, after such Asset
Sale, including, without limitation, liabilities under any indemnification
obligations and severance and other employee termination costs associated with
such Asset Sale, until such time as such amounts are no longer reserved or such
reserve is no longer necessary (at which time any remaining amounts will become
Net Cash Proceeds); and (v) all distributions and other payments required to be
made (or made on a pro rata basis) to minority interest holders in Subsidiaries
of such Person as a result of such Reduction Event.
14
"Net Consolidated Capital Expenditures" means, for any period with
respect to the Borrower and its Consolidated Subsidiaries, (i) Consolidated
Capital Expenditures for such period plus (ii) to the extent not included in
such Consolidated Capital Expenditures, the aggregate amount of expenditures or
additions to property, plant and equipment and other capital expenditures
financed with the proceeds of capital leases or other Debt minus (iii) the Net
Cash Proceeds of any sale, transfer or other disposition of assets described in
clause (iii) or (vi) of the definition of "Asset Sale" and consummated during
such period or any prior period or (y) insurance proceeds received during such
period or any prior period. On the basis set forth in the immediately preceding
sentence, (x) Net Consolidated Capital Expenditures for the fiscal quarter
ended June 30, 1996 were $306,000,000 and (y) Net Consolidated Capital
Expenditures for the fiscal quarter ended September 30, 1996 were $238,000,000.
"Notes" has the meaning set forth in Section 2.16(b).
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"Obligor" means the Borrower or any Subsidiary Guarantor, and
"Obligors" means all of the foregoing.
"Offeror" means Atlantic Acquisition Corporation, a Pennsylvania
corporation and a wholly-owned Subsidiary of the Borrower, and its successors.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for
15
employees of any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pledge Agreement" means the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement, and "Pledge Agreements" means both of them.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Quarterly Dates" means each March 31, June 30, September 30 and
December 31.
"Reduction Event" means (i) any Asset Sale, (ii) the incurrence of any
Debt by the Borrower or any of its Subsidiaries in reliance on subsection (c)
or (j) of Section 5.11, (iii) the incurrence of any Debt by the Borrower or a
Subsidiary in reliance on subsection (i) of Section 5.11 ("CP Debt") if, and
solely to the extent that, (A) such CP Debt is incurred after the Acquisition
Date ("Post Acquisition CP Debt"), (B) after giving effect thereto and the
application of the proceeds thereof, the aggregate outstanding principal amount
of CP Debt (whenever incurred) is increased and (C) after giving effect thereto
and the application of the proceeds thereof, the aggregate outstanding
principal amount of Post Acquisition CP Debt exceeds the aggregate principal
amount of Post Acquisition CP Debt which has previously given rise to a
Reduction Event pursuant to this clause (iii) , (iv) the issuance of any equity
securities by the Borrower or any of its Subsidiaries (other than (w) equity
securities issued in consideration for the acquisition of any assets
(including, without limitation, any equity interests of any other Person), (x)
equity securities issued to the Borrower or any of its Subsidiaries, (y)
directors' qualifying shares and (z) equity securities issued in the ordinary
course of business in connection with now or hereafter existing employee stock
purchase plans and other employee compensation arrangements (but excluding from
this clause (z) any equity securities issued or sold to Conrail's Matched
Savings Plan (or any successor plan) and purchased by such Plan (or any
successor plan), (v) receipt of Major Property Insurance Proceeds, (vi) any
Extraordinary Distribution (as defined in either Pledge Agreement) by the
Voting Trust or (vii) receipt by the Borrower or any of its Subsidiaries at any
time on or after the Consummation Date of any payment with respect to amounts
outstanding under the loan between Conrail and the trust under Conrail's
Matched Savings Plan (other than repayments in an amount not exceeding the sum
of (a) any amounts contributed by the Borrower or any of its Subsidiaries to
such trust and (b) any dividends received
16
by such trust with respect to stock of the Borrower or any of its
Subsidiaries). The description of any transaction as falling within the above
definition does not affect any limitation on such transaction imposed by
Article 5 of this Agreement.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Release Event" means that the Borrower's senior unsecured long-term
debt is rated BBB-or higher by S&P and Baa3 or higher by Moody's. The credit
ratings to be utilized for purposes of this definition shall be the new (or
confirmed) ratings of the Borrower's senior unsecured long-term debt announced
(either before or after the Acquisition) by Xxxxx'x and S&P giving effect to
the Acquisition (and, if applicable, giving effect to the termination of the
Collateral Documents as a consequence of such rating).
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Exposures at such time.
"Restricted Investment" means any Investment in Conrail or any of its
Subsidiaries, including without limitation any purchase of any shares of Common
Stock, Series A ESOP Convertible Junior Preferred Stock or any other capital
stock of Conrail, other than (i) the Acquisition itself and (ii) the Initial
Conrail Investment.
"Revolving Credit Bank" means each Bank identified in the Commitment
Schedule as having a Revolving Credit Commitment and each Assignee which
acquires a Revolving Credit Commitment and/or Revolving Credit Loans pursuant
to Section 9.06(c), and their respective successors.
"Revolving Credit Commitment" means,
(i) with respect to each Revolving Credit Bank listed on the
signature pages hereof, the amount set forth opposite the name of such
Bank under the heading "Revolving Credit Commitment" in the Commitment
Schedule, or
(ii) with respect to each Assignee which becomes a Revolving
Credit Bank pursuant to Section 9.06(c), the amount of the Revolving
Credit Commitment thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.09 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
17
"Revolving Credit Loan" means a loan made by a Revolving Credit Bank
pursuant to Section 2.01(d).
"Revolving Credit Period" means the period from and including the
Closing Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means August 1, 1997; provided
that the Revolving Credit Termination Date shall be extended to the date which
is the fifth anniversary of the Closing Date if on or prior to August 1, 1997
the Acquisition Date shall have occurred (or, if such fifth anniversary date is
not a Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case the Revolving Credit Termination Date shall be the next preceding
Euro-Dollar Business Day).
"Second Offer" means the offer by the Offeror to purchase all the
outstanding shares of Common Stock and Series A ESOP Convertible Junior
Preferred Stock of Conrail at $115 net per share pursuant to the Second Offer
to Purchase.
"Second Offer to Purchase" means an Offer to Purchase by the Offeror
to the stockholders of Conrail, the terms and conditions of which Offer to
Purchase shall be substantially identical to those of the First Offer to
Purchase as supplemented as of December 20, 1996, as amended from time to time
in accordance with its terms; provided that no such amendment (other than (i)
any amendment effecting an extension of the expiration date of the Second Offer
and (ii) any amendments not affecting the conditions to or any material term of
the Second Offer) shall be effective for purposes of references thereto in this
Agreement unless approved in writing by the Required Banks.
"Significant Subsidiary" means, at any time, (i) Norfolk Southern
Railway Company, (ii) Norfolk and Western Railway Company, (iii) the Offeror,
(iv) solely on and after the Consummation Date, Conrail and (v) each other
Subsidiary (x) whose assets (or, in the case of a Subsidiary which has
subsidiaries, consolidated assets) as shown on the latest financial statements
delivered by the Borrower pursuant to, prior to the Consummation Date, Section
5.01(a)(ii) or (b)(y) and, on or after the Consummation Date, Section
5.01(a)(i) or (b)(x), as the case may be, are (A) at least 5% of the
consolidated assets of the Borrower and its Consolidated Subsidiaries
(including for such purpose Conrail and its Subsidiaries, all as shown on such
financial statements) at such time and (B) at least $1,500,000,000 or (y) whose
operating income (or, in the case of a Subsidiary which has subsidiaries,
consolidated operating income) as shown on the latest financial statements
delivered by the Borrower pursuant to, prior to the Consummation Date, Section
5.01(a)(ii) or (b)(y) and, on or after the Consummation Date, Section
5.01(a)(i) or (b)(x), as the case may be, is (A) at least 5% of the
consolidated operating income of the Borrower and its
18
Consolidated Subsidiaries (including for such purpose Conrail and its
Subsidiaries, all as shown on such financial statements) at such time and (B)
at least $150,000,000.
"STB" means the Surface Transportation Board, an agency of the Federal
Government of the United States of America.
"STB Approval Date" means the date on which the STB approves the
acquisition of control of Conrail by the Borrower, without any terms or
conditions not satisfactory to the Borrower.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
such Person; unless otherwise specified, a "Subsidiary" means a Subsidiary of
the Borrower. Except as otherwise specified, the Voting Trust and Conrail and
its Subsidiaries shall not be deemed Subsidiaries of the Borrower prior to the
Consummation Date.
"Subsidiary Guarantee Agreement" means a Subsidiary Guarantee
Agreement by the Subsidiary Guarantors in favor of the Administrative Agent in
substantially the form of Exhibit B.
"Subsidiary Guarantors" means the Significant Subsidiaries from time
to time parties to the Subsidiary Guarantee Agreement.
"Subsidiary Pledge Agreement" means the Pledge Agreement to be entered
into between the Significant Subsidiaries and the Administrative Agent for the
benefit of the Secured Parties named therein, in substantially the form of
Exhibit A-2, in respect of the Trust Certificates (as defined in the Voting
Trust Agreement) held by Offeror and the capital stock and indebtedness of any
Significant Subsidiary owned directly by any such Significant Subsidiary.
"Term Availability Period" means the period from and including the
Closing Date to and including the Merger Date.
"Term Loan" means a Term Loan-I, a Term Loan-II or a Term Loan-III.
"Term Loan Bank" means a Term Loan-I Bank, a Term Loan-II Bank or a
Term Loan-III Bank.
"Term Loan Commitment" means a Term Loan-I Commitment, a Term Loan-II
Commitment or a Term Loan-III Commitment.
19
"Term Loan-I" means a loan made by a Term Loan-I Bank pursuant to
Section 2.01(a).
"Term Loan-I Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-I Commitment and each Assignee which acquires a
Term Loan-I Commitment and/or Term Loan-I pursuant to Section 9.06(c), and
their respective successors.
"Term Loan-I Commitment" means,
(i) with respect to each Term Loan-I Bank listed on the signature
pages hereof, the amount set forth opposite the name of such Bank
under the heading "Term Loan-I Commitment" in the Commitment Schedule,
or
(ii) with respect to each Assignee which becomes a Term Loan-I
Bank pursuant to Section 9.06(c), the amount of the Term Loan-I
Commitment thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.09 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Term Loan-II" means a loan made by a Term Loan-II Bank pursuant to
Section 2.01(b).
"Term Loan-II Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-II Commitment and each Assignee which acquires a
Term Loan-II Commitment and/or Term Loan-II pursuant to Section 9.06(c), and
their respective successors.
"Term Loan-II Commitment" means,
(i) with respect to each Term Loan-II Bank listed on the
signature pages hereof, the amount set forth opposite the name of such
Bank under the heading "Term Loan-II Commitment" in the Commitment
Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan-II
Bank pursuant to Section 9.06(c), the amount of the Term Loan-II
Commitment thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.09 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
20
"Term Loan-III" means a loan made by a Term Loan-III Bank pursuant to
Section 2.01(c).
"Term Loan-III Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-III Commitment and each Assignee which acquires
a Term Loan-III Commitment and/or Term Loan-III pursuant to Section 9.06(c),
and their respective successors.
"Term Loan-III Commitment" means,
(i) with respect to each Term Loan-III Bank listed on the
signature pages hereof, the amount set forth opposite the name of such
Bank under the heading "Term Loan-III Commitment" in the Commitment
Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan-III
Bank pursuant to Section 9.06(c), the amount of the Term Loan-III
Commitment thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.09 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Total Debt" means at any date the aggregate amount of Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
"Type" has the meaning set forth in Section 1.03.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefit liabilities
under such Plan exceeds (ii) the fair market value of all Plan assets allocable
to such benefit liabilities (excluding any accrued but unpaid contributions),
but only to the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Voting Trust" means the voting trust established pursuant to the
Voting Trust Agreement.
"Voting Trust Agreement" means the Voting Trust Agreement contemplated
by the First Offer to Purchase, as amended and in effect on the Acquisition
Date and
21
as the same may be further amended from time to time in accordance with the
provisions thereof and hereof.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the then most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend any covenant in
Article 5 to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Banks wish to
amend Article 5 for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Banks. The pro forma condensed financial statements to be
delivered by the Borrower pursuant to Sections 5.01(a)(ii) or 5.01(b)(y)(A)
shall be prepared on a basis consistent with the pro forma condensed financial
information presented in the Information Memorandum.
SECTION 1.03. Classes and Types of Loans and Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Banks to be made to
the Borrower pursuant to Article 2 on the same date, all of which Loans are of
the same Class and Type (subject to Article 8) and, except in the case of Base
Rate Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans)
refers to the determination whether such Loan is a Term Loan-I, Term Loan-II,
Term Loan-III or Revolving Credit Loan, each of which constitutes a Class. The
"Type" of a Loan refers to the determination whether such Loan is a Euro-Dollar
Loan, a CD Loan, a Base Rate Loan or a Money Market Loan, each of which
constitutes a "Type". Identification of a Loan (or a Borrowing) by both Class
and Type (e.g., a "Euro-Dollar Term Loan-I") indicates that such Loan is both a
Term Loan-I and a Euro-Dollar Loan (or that such Borrowing is comprised of such
Loans).
22
ARTICLE 2
THE CREDIT
SECTION 2.01. Commitments to Lend. (a) Term Loan-I Facility. During
the Term Availability Period each Term Loan-I Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make a Term Loan-I to the
Borrower on each of the Acquisition Date and the Merger Date in amounts not to
exceed in the aggregate the amount of its Term Loan-I Commitment. The Term
Loan-I Commitments are not revolving in nature, and amounts repaid or prepaid
pursuant to Section 2.11 or Section 2.12 shall not be reborrowed.
(b) Term Loan-II Facility. During the Term Availability Period each
Term Loan-II Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make a Term Loan-II to the Borrower on each of the
Acquisition Date and the Merger Date in amounts not to exceed in the aggregate
the amount of its Term Loan-II Commitment. The Term Loan-II Commitments are not
revolving in nature, and amounts repaid or prepaid pursuant to Section 2.11 or
Section 2.12 shall not be reborrowed.
(c) Term Loan-III Facility. During the Term Availability Period each
Term Loan-III Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make a Term Loan-III to the Borrower on each of the
Acquisition Date and the Merger Date in amounts not to exceed in the aggregate
the amount of its Term Loan-III Commitment. The Term Loan-III Commitments are
not revolving in nature, and amounts repaid or prepaid pursuant to Section 2.11
or Section 2.12 shall not be reborrowed.
(d) Revolving Credit Facility. During the Revolving Credit Period,
each Revolving Credit Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make Revolving Credit Loans to the Borrower from
time to time in an aggregate amount at any time outstanding not to exceed the
amount of its Revolving Credit Commitment. Within the limits specified in this
Agreement, the Borrower may borrow under this Section 2.01(d), prepay Revolving
Credit Loans to the extent permitted by Section 2.11 and reborrow at any time
during the Revolving Credit Period pursuant to this Section 2.01(d).
(e) Minimum Amount. Each Borrowing under this Section 2.01 shall be
in the aggregate principal amount of $25,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount of
the unused Commitments of the relevant Class) and shall be made from the
several Banks ratably in proportion to their respective Commitments of the
relevant Class.
23
SECTION 2.02. Notice of Committed Borrowings. The Borrower shall give
the Administrative Agent notice (a "Notice of Committed Borrowing") not later
than 10:30 A.M. (New York City time) on (x) the date of each Base Rate
Borrowing, (y) the second Domestic Business Day before each CD Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) the Class and initial Type of Loans comprising such Borrowing; and
(d) in the case of a Fixed Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Revolving Credit
Borrowings pursuant to Section 2.01, but within the limitations of the
Revolving Credit Commitments as contemplated by Sections 3.04(b) and (c), the
Borrower may, as set forth in this Section, request (but is not obligated to
request) the Banks from time to time prior to the Revolving Credit Termination
Date to make offers to make Money Market Loans to the Borrower. The Banks may
make, but shall have no obligation to make, such offers and the Borrower may
accept, but shall have no obligation to accept, any such offers in the manner
set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit G hereto so as to be received no
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
24
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the proposed aggregate amount of such Borrowing, which shall
be $25,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit H hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is
to be effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of
the offer or offers contained therein not later than (x) one hour prior to the
deadline for the
25
other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute Rate Auction. Subject
to Articles 3 and 6, any Money Market Quote so made shall be irrevocable except
with the written consent of the Administrative Agent given on the instructions
of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit I hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x)
must be $5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans for which
offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit I hereto
or does not specify all of the information required by subsection
(d)(ii);
(B) contains qualifying, conditional or similar language;
26
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (x) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify
the Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money
Market Quote Request,
(ii) the aggregate principal amount of each Money Market
Borrowing must be $25,000,000 or a larger multiple of $1,000,000,
27
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Administrative Agent of
the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank participating therein of the contents thereof
and of such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant to
Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.04 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the
28
Administrative Agent, such Bank and the Borrower severally agree to repay to
the Administrative 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 Administrative
Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.06 and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement.
SECTION 2.05. Maturity of Loans. (a) Each Term Loan-I shall mature,
and the principal amount thereof shall be due and payable in full together with
accrued interest thereon, on the earlier of (i) the date which falls six months
after the date on which the STB issues its final order with respect to the
acquisition of control of Conrail by the Borrower (regardless of whether such
date is the STB Approval Date) and (ii) the third anniversary of the Closing
Date; provided that, in any event, $1,000,000,000 of the principal amount of
Term Loan - I shall be payable on the date which is 12 months after the
Acquisition Date.
(b) Each Term Loan-II shall mature, and the principal amount thereof
shall be due and payable in full together with accrued interest thereon, on the
earlier of the date falling thirty months after the date on which the STB
issues its final order with respect to the acquisition of control of Conrail by
the Borrower (regardless of whether such date is the STB Approval Date) and the
fifth anniversary of the Closing Date.
(c) Each Term Loan-III shall mature, and the principal thereof shall
be payable, in installments as set forth below; provided that (i) solely with
respect to the installments of the Term Loan-III payable on March 31, 1997, if
the Merger Date shall not have occurred on or prior to such date, (x) the
amount of the installment to be repaid on such date shall be $0 and (y) the
amount of the installment payable on the last date set forth below shall be
increased by $75,000,000 and (ii) solely with respect to the installments of
the Term Loan-III payable on June 30, 1997, if the Merger Date shall not have
occurred on or prior to such date, (x) the amount of the installment to be
repaid on such date shall be $0 and (y) the amount of the installment payable
on the last date set forth below shall be further increased by $75,000,000:
Date Amount Due
3/31/97 75,000,000
29
6/30/97 75,000,000
9/30/97 75,000,000
12/31/97 75,000,000
3/31/98 75,000,000
6/30/98 75,000,000
9/31/98 75,000,000
12/31/98 75,000,000
3/31/99 125,000,000
6/30/99 125,000,000
9/30/99 125,000,000
12/31/99 125,000,000
3/31/00 125,000,000
6/30/00 125,000,000
9/30/00 125,000,000
12/31/00 125,000,000
3/31/01 125,000,000
6/30/01 125,000,000
9/30/01 125,000,000
12/31/01 125,000,000
3/31/02 125,000,000
6/30/02 125,000,000
9/30/02 125,000,000
12/31/02 125,000,000
3/31/03 100,000,000
6/30/03 300,000,000
(d) Each Revolving Credit Loan shall mature, and the principal amount
thereof shall be payable in full together with accrued interest thereon, on the
Revolving Credit Termination Date.
(e) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.06. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the day
such Loan is made to but excluding the day it becomes due, at a rate per annum
equal to the sum of the Applicable Margin plus the Base Rate for such day. Such
interest shall be payable at maturity, quarterly in arrears on each Quarterly
Date prior to maturity and, with respect to the principal amount of any Base
Rate Loan converted to a Fixed Rate Loan, on the date such Loan is so
converted.
30
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Applicable Margin for such day plus
the Adjusted CD Rate applicable to such Interest Period; provided that if any
CD Loan or any portion thereof shall, as a result of the definition of Interest
Period, have an Interest Period of less than 30 days, such portion shall bear
interest for each day during such Interest Period at the rate applicable to
Base Rate Loans for such day. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, 90 days after the first day thereof.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ] *
--------------
ACDR = [ 1.00 - DRP ] + AR
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to
the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
31
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, three months after
the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.06(c) as if the related Money Market LIBOR Borrowing were a
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in
32
accordance with Section 2.03. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute Rate
quoted by the Bank making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
(e) Any overdue principal of or interest on any Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of the Applicable Margin for Base Rate Loans plus the Base Rate for
such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.07. Regulation D Compensation. Each Bank may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such Bank up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Administrative Agent, in
which case such additional interest on the Euro-Dollar Loans of such Bank shall
be payable to such Bank at the place indicated in such notice with respect to
each Interest Period commencing at least three Euro-Dollar Business Days after
the giving of such notice and (y) shall notify the Borrower at least five
Euro-Dollar Business Days prior to each date on which interest is payable on
the Euro-Dollar Loans of the amount then due it under this Section.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of
33
"Eurocurrency liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Euro-Dollar
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to United States
residents). The compensation payable pursuant to this Section shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
SECTION 2.08. Facility Fees. The Borrower shall pay to the
Administrative Agent, for the account of the Banks ratably in accordance with
their respective Exposures, a facility fee for each day at a rate per annum
equal to the Facility Fee Rate for such day (determined in accordance with the
Pricing Schedule), on the aggregate amount of the Exposures on such day. Such
facility fees shall accrue for each day from and including the Closing Date to
but excluding the date on which no Bank has any Exposure (the "Termination
Date"). Accrued fees under this Section shall be payable quarterly in arrears
on each Quarterly Date and on the Termination Date.
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments of any Class at any time,
if no Loans of such Class are outstanding at such time (after giving effect to
any mandatory or optional prepayments to be made at such time) or (ii) ratably
reduce from time to time by an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000, the aggregate amount of the Commitments of any Class in
excess of the aggregate outstanding amount of the Loans of such Class.
SECTION 2.10. Method of Electing Interest Rates. (a) The Committed
Loans included in each Borrowing shall bear interest initially at the type of
rate specified by the Borrower in the applicable Notice of Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Term Loans and Revolving Credit
Loans (subject in each case to the provisions of Article 8 and the last
sentence of this subsection (a)), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to
continue such Loans as CD Loans for an additional Interest Period, in
either case effective on the last day of the then current Interest
Period applicable to such Loans; and
34
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or CD Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, in either case effective on the last day of the then current
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:30 A.M. (New York
City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each $25,000,000 or any larger multiple of $1,000,000. If no such
notice is timely received prior to the end of an Interest Period, the Borrower
shall be deemed to have elected that all Loans having such Interest Period be
converted to Base Rate Loans. Notwithstanding the foregoing, the Borrower may
not elect to convert any Loan to, or continue any Loan as, a Fixed Rate Loan
pursuant to any Notice of Interest Rate Election if at the time such notice is
delivered a Default shall have occurred and be continuing.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new Type of Loans and, if the Loans being converted are to be Fixed
Rate Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Fixed Rate Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each
35
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.04.
SECTION 2.11. Optional Prepayments. (a) The Borrower may, (i) upon at
least one Domestic Business Day's notice to the Administrative Agent, prepay
the Group of Base Rate Loans of any Class (or any Money Market Borrowing
bearing interest at the Base Rate pursuant to Section 8.01(a)) or (ii) upon at
least (x) in the case of CD Loans, one Domestic Business Day's notice to the
Administrative Agent and (y) in the case of Euro-Dollar Loans, three
Euro-Dollar Business Days' notice to the Administrative Agent, and subject, in
each case, to Section 2.14, prepay any Group of Fixed Rate Loans of any Class,
in each case in whole at any time, or from time to time in part in amounts
aggregating $25,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment of a Group of Loans shall be
applied to prepay ratably the Loans of the Banks included in such Group.
(b) Except as provided in subsection (a) of this Section 2.11, the
Borrower may not prepay all or any portion of the principal amount of any Money
Market Loan prior to the maturity thereof without the consent of the Bank
holding such Loan.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share (if any) of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
SECTION 2.12. Mandatory Reduction and Termination of Commitments;
Mandatory Prepayments. (a) Subject to subsection (b) below, the Term
Commitments shall terminate at the close of business on the last day of the
Term Availability Period and the Revolving Credit Commitments shall terminate
on the Revolving Credit Termination Date.
(b) If the Acquisition Date shall not have occurred on or prior to
August 1, 1997, all Term Commitments shall terminate on such date.
(c) Each Term Commitment shall be reduced on the date of and by the
principal amount of each Term Loan made pursuant thereto.
36
(d) If a Reduction Event shall occur, an amount equal to the Net Cash
Proceeds thereof shall be applied in the following order of priority until such
amount has been fully applied:
First, to the reduction of the unused portion of the Term
Loan-I Commitments until such unused portion shall have been
reduced to zero;
Second, to the reduction of the unused portion of the Term
Loan-II Commitments until such unused portion shall have been
reduced to zero;
Third, to the reduction of the unused portion of the Term
Loan-III Commitments until such unused portion shall have been
reduced to zero;
Fourth, to the prepayment of Term Loans-I, until the Term
Loans-I shall have been prepaid in full;
Fifth, to the prepayment of Term Loans-II, until the Term
Loans-II shall have been prepaid in full; and
Sixth, to the prepayment of Term Loans-III, until the Term
Loans-III shall have been prepaid in full.
Each such reduction and/or prepayment shall be made within five
Euro-Dollar Business Days receipt by the Borrower or any of its Subsidiaries,
as the case may be, of such Net Cash Proceeds, provided that
(i) if the Net Cash Proceeds in respect of any Reduction Event
are less than $5,000,000, such reduction and/or prepayment shall be
effective upon receipt of proceeds such that, together with all other
such amounts not previously applied, the Net Cash Proceeds are equal
to at least $5,000,000; and
(ii) if any prepayment would otherwise require prepayment of
Fixed Rate Loans or portions thereof prior to the last day of the then
current Interest Period, then such prepayment shall, unless the
Administrative Agent otherwise notifies the Borrower upon the
instructions of the Required Banks, be deferred to the last day of
such Interest Period.
The Borrower shall give the Administrative Agent at least five Euro-Dollar
Business Days' notice of each prepayment required to be made pursuant to this
subsection (d).
(e) Applications of Reductions and Prepayments.
37
(i) Each reduction of the Term Commitments and/or prepayment of
Term Loans shall be applied ratably to the respective Term Commitments
and/or Term Loans of the relevant Class of all Term Loan Banks.
(ii) The amount of any reduction of the Term Loan-I Commitments
and/or prepayments of Term Loans-I pursuant to Sections 2.09, this
Section 2.12 or Section 2.11 shall be applied to reduce the amount of
the scheduled prepayments of the Term Loans-I required pursuant to the
proviso set forth in Section 2.05(a) until such amount is reduced to
zero.
(iii) The amount of any reduction of the Term Loan-III
Commitments and/or prepayment of Term Loans-III pursuant to Section
2.09, this Section 2.12 or Section 2.11 shall be applied to reduce
ratably by amount the then remaining amounts of subsequent scheduled
payments of the Term Loans-III required pursuant to Section 2.05.
(iv) Each payment of principal of the Term Loans of any Class
shall be made together with interest accrued and unpaid on the amount
repaid to the date of payment.
(v) Each payment of the Term Loans of any Class shall be applied
to such Group or Groups of Loans of such Class as the Borrower may
designate (or, failing such designation, as determined by the
Administrative Agent).
SECTION 2.13. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Bank, for the account of
its Applicable Lending Office, its ratable share of each such payment received
by the Administrative Agent for the account of the Banks. Whenever any payment
of principal of, or interest on, the Domestic Loans or of fees shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the Money Market Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be
38
extended to the next succeeding Euro-Dollar Business Day, unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative 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
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrower shall not have so made such payment, each Bank shall repay to
the Administrative 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
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article 6 or 8 or otherwise) on any day other than the
last day of the Interest Period applicable thereto, or if the Borrower fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.04(a), 2.10(c) or 2.11(c), the
Borrower shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin for the period after any such payment or failure
to borrow, provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense indicating in reasonable
detail the computation thereof, which certificate shall be conclusive in the
absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Registry. (a) The Administrative Agent shall maintain a
register (the "Register") on which it will record the Commitment(s) of each
Bank, each Loan made by such Bank and each repayment of any Loan made by such
Bank.
39
Any such recordation by the Administrative Agent on the Register shall be
conclusive, absent manifest error. With respect to any Bank, the assignment or
other transfer of the Commitments of such Bank and the rights to the principal
of, and interest on, any Loan made and Note issued pursuant to this Agreement
shall not be effective until such assignment or other transfer is recorded on
the Register and otherwise complies with Section 9.06(c). The registration of
assignment or other transfer of all or part of any Commitments, Loans and Notes
for a Bank shall be recorded by the Administrative Agent on the Register only
upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement referred to in Section 9.06(c).
The Register shall be available at the offices where kept by the Administrative
Agent for inspection by the Borrower and any Bank at any reasonable time upon
reasonable prior notice to the Administrative Agent. The Borrower may not
replace any Bank pursuant to Section 8.06 unless, with respect to any Notes
held by such Bank, the requirements of this subsection have been satisfied.
Each Bank shall record on its internal records (including computerized systems)
the foregoing information as to its own Commitment(s) and Loans. Failure to
make any such recordation, or any error in such recordation, shall not affect
the obligations of any Obligor under the Loan Documents in respect of the
Loans.
(b) The Borrower hereby agrees that, upon the request of any Bank at
any time, such Bank's Loans shall be evidenced by a promissory note or notes of
the Borrower (each a "Note"), substantially in the form of Exhibit C hereto,
payable to the order of such Bank and representing the obligation of the
Borrower to pay the unpaid principal amount of the Loans made by such Bank,
with interest as provided herein on the unpaid principal amount from time to
time outstanding.
ARTICLE 3
CONDITIONS TO BORROWING
The obligation of each Bank to make a Loan on the occasion of any
Borrowing is subject to the satisfaction of the following conditions:
SECTION 3.01. First Borrowing Date. In the case of the Borrowing on
the First Borrowing Date:
(a) receipt by the Administrative Agent, to the extent requested by
any Bank not less than five Domestic Business Days prior to the First Borrowing
Date, of any Notes so requested duly executed by the Borrower;
40
(b) the fact that all fees and expenses payable on or before the First
Borrowing Date by the Borrower for the account of the Banks and their
affiliates in connection with this Agreement shall have been paid in full on or
before such date in the amounts previously agreed upon in writing;
(c) receipt by the Administrative Agent of opinions of (i) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Borrower and (ii) Xxxx
Xxxx, General Counsel-Corporate of the Borrower (or another counsel for the
Borrower reasonably satisfactory to the Administrative Agent) substantially in
the respective forms of Exhibits D-1 and D-2 hereto;
(d) receipt by the Administrative Agent of an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agents, substantially in the form of Exhibit
E hereto;
(e) receipt by the Lenders of the financial statements referred to in
Section 4.04(b);
(f) the fact that the Borrower shall have (i) terminated the
commitments of the banks under the Existing Credit Agreement, (ii) repaid in
full all loans (if any) outstanding thereunder and all interest (if any)
accrued thereon and (iii) paid all facility fees accrued thereunder to but not
including the date on which such commitments terminated;
(g) the fact that, immediately after giving effect to such Borrowing
and the application of the proceeds of the Loans included therein, the Borrower
shall be in compliance, on a pro forma basis, on the First Borrowing Date with
the provisions of subsection (b) of Section 5.07; and
(h) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement and any other matters relevant
thereto, all in form and substance satisfactory to the Administrative Agent.
SECTION 3.02. Acquisition Date. In the case of the Borrowing on the
Acquisition Date:
(a) receipt by the Administrative Agent of counterparts of the
Subsidiary Guarantee Agreement, duly executed by the Borrower and by each
Subsidiary of the Borrower which is a Significant Subsidiary as of the
Acquisition Date and, solely if a Release Event shall not have occurred prior
to the Acquisition Date, duly executed counterparts of each Pledge Agreement
together with certificates for the Pledged
41
Stock (as defined in each Pledge Agreement) and the Pledged Certificates (as
defined in each Pledge Agreement);
(b) the fact that all material governmental and third party approvals
(including approvals under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and other consents, but excluding STB approval) necessary in connection
with the Acquisition shall have been obtained and be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken by any governmental authority which has restrained, prevented or
otherwise imposed materially adverse conditions on the Acquisition, and the
Administrative Agent shall have received copies, certified by the Secretary or
an Assistant Secretary of the Borrower, of all filings made with any
governmental authority in connection with the Acquisition which the Agent shall
have requested;
(c) the fact that all fees and expenses payable on or before the
Acquisition Date by the Borrower for the account of the Banks and their
affiliates in connection with this Agreement shall have been paid in full on or
before such date in the amounts previously agreed upon in writing;
(d) receipt by the Administrative Agent of a certificate of the chief
executive officer or the chief financial officer of the Borrower that the
Second Offer has been consummated in accordance with the Second Offer to
Purchase, without, unless consented to in writing by the Required Banks, waiver
of any of the conditions thereof other than the financing condition;
(e) the fact that the Administrative Agent shall not have received
notice from the Required Banks that, in their reasonable determination, any of
the conditions of the Second Offer has not been fulfilled other than the
financing condition;
(f) receipt by the Administrative Agent of opinions of (i) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Borrower, (ii) Xxxx
Xxxx, General Counsel-Corporate of the Borrower (or another counsel for the
Borrower reasonably satisfactory to the Administrative Agent) and (iii)
Xxxxxxxx Xxxxx & Xxxxx, special Virginia counsel to the Borrower, substantially
in the respective forms of Exhibits X-0, X-0 and D-5 hereto;
(g) the fact that, immediately after giving effect to such Borrowing
and the application of the proceeds of the Loans included therein, the Borrower
shall be in compliance, on a pro forma basis, on the Acquisition Date with the
provisions of each subsection of Section 5.07 (it being understood that with
respect to subsections (a) and (c) of such Section the Borrower shall be
required to be in compliance on the Acquisition Date with the ratio set forth
in each such subsection opposite the period in which the Acquisition Date
occurs);
42
(h) the fact that the Voting Trust Agreement shall have been executed
and delivered and shall be substantially in the form distributed to the Banks
prior to the date hereof; and
(i) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence of the Obligors, the corporate
authority for and the validity of this Loan Documents and any other matters
relevant thereto, all in form and substance satisfactory to the Administrative
Agent.
SECTION 3.03. Merger Date. In the case of the Borrowing on the Merger
Date:
(a) the fact that substantially simultaneously therewith, the Merger
shall be consummated and all capital stock of Conrail, after giving effect
thereto, shall be held by the Voting Trust (if the Merger Date occurs prior to
the STB Approval Date) or by the Borrower or a Significant Subsidiary party to
a Pledge Agreement (if the Merger Date occurs on or after the STB Approval
Date); and
(b) the fact that, immediately after giving effect to such Borrowing
and the application of the proceeds of the Loans included therein, the Borrower
shall be in compliance on a pro forma basis on the Merger Date with the
provisions of each subsection of Section 5.07 (it being understood that with
respect to subsections (a) and (c) of such Section the Borrower shall be
required to be in compliance on the Merger Date with the ratio set forth in
each such subsection opposite the period in which the Merger Date occurs).
SECTION 3.04. Borrowings. The obligation of any Bank to make a Loan on
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may be;
(b) in the case of a Revolving Credit Borrowing or a Money Market
Borrowing, the fact that, immediately after such Borrowing and
application of the proceeds thereof, the aggregate outstanding
principal amount of the Revolving Credit Loans and the Money Market
Loans will not exceed the aggregate amount of the Revolving Credit
Commitments;
(c) in the case of a Revolving Credit Borrowing or a Money Market
Borrowing made prior to the Acquisition Date, the fact that,
immediately after such Borrowing and application of the proceeds
thereof, the aggregate
43
outstanding principal amount of the Revolving Credit Loans and the
Money Market Loans will not exceed $1,650,000,000;
(d) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the
Borrower contained in each Loan Document shall be true in all material
respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c), (d) and (e) of this Section.
SECTION 3.05. Waiver by Banks. In order to facilitate the satisfaction
of the condition set forth in Section 3.01(f) above, each of the parties hereto
which is a party to the Existing Credit Agreement waives (i) the requirement in
Section 2.09 thereof that a notice terminating the commitments of the banks
thereunder must be given at least three Domestic Business Days prior to such
termination, (ii) to the extent necessary, the requirement in Section 2.11(a)
thereof that a notice of prepayment of any Base Rate Borrowing (as defined in
the Existing Credit Agreement) must be given at least one Domestic Business Day
prior to such termination and (iii) to the extent necessary, the prohibition in
Section 2.11 thereof on the prepayment of Fixed Rate Loans (as defined in the
Existing Credit Agreement) prior to the maturity thereof (subject to the
obligations of the Borrower to pay to each bank party to the Existing Credit
Agreement all amounts payable by the Borrower to such bank pursuant to Section
2.13 of the Existing Credit Agreement as a result of any such prepayment).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants on the date hereof that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Virginia (or, if another corporation has become the Borrower as
permitted by Section 5.09, the laws of its jurisdiction of incorporation). The
Borrower has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where the failure
44
to have such licenses, authorizations, consents and approvals could not be
reasonably expected to result in a Material Adverse Change.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of the
Loan Documents are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official (except
for (i) the filing of UCC-1 financing statements referred to in the Pledge
Agreement and (ii) filings with governmental agencies (x) which filings are
necessary or desirable in order for the Borrower to comply with disclosure
obligations under applicable laws or with Section 5.18 and (y) which filings,
if not made, would not have any effect on the validity or enforceability of the
Loan Documents and the obligations of the Borrower thereunder) and do not
contravene, or constitute a default under, any provision of law or regulation
applicable to the Borrower (including without limitation the Margin
Regulations) or of the articles of incorporation or by-laws of the Borrower, or
of any agreement under which Debt may be incurred or any other material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Consolidated Subsidiaries or result in the creation
or imposition of any Lien (other than the Liens of the Pledge Agreements) on
any asset of the Borrower or any of its Consolidated Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes, and when
executed and delivered in accordance with this Agreement, each other Loan
Document will constitute, a valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect and (ii)
equitable principles of general applicability.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1995 and the related consolidated
statements of income, cash flows and changes in stockholders' equity for the
fiscal year then ended, reported on by KPMG Peat Marwick and set forth in the
Borrower's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations, cash flows and changes in stockholders' equity for such fiscal
year.
45
(b) The unaudited pro forma condensed balance sheet of the Borrower
and Conrail as of December 31, 1996 set forth in the Information Memorandum has
been prepared on the basis described therein and otherwise in conformity with
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section and shows
the combined financial position of the Borrower and Conrail as if the
Consummation Date had occurred on December 31, 1996.
(c) Except as reflected in the pro forma condensed balance sheet
referred to in subsection (b) or elsewhere in the Information Memorandum, since
the respective dates as of which information is stated in the Information
Memorandum, there has been no material adverse change in the consolidated
financial condition, operations, assets, business or prospects of the Borrower
and its Consolidated Subsidiaries (including for this purpose Conrail and its
Consolidated Subsidiaries), taken as a whole (a "Material Adverse Change").
SECTION 4.05. Litigation. There is no action, suit or proceeding
(including any rate-setting hearing) pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower or any of its
Consolidated Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could reasonably be expected to result in a
Material Adverse Change or which in any manner draws into question the validity
or enforceability of this Agreement or (prior to a Release Event) the
Collateral Documents.
SECTION 4.06. Compliance with Laws. (a) The Borrower and its
Consolidated Subsidiaries are in compliance in all material respects with all
applicable provisions of the United States Interstate Commerce Act, as amended,
and all regulations, orders, rulings and interpretations thereunder, except
where the failure to so comply could not reasonably be expected to result in a
Material Adverse Change.
(b) Each member of the ERISA Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any material contribution or payment
due under any Multiemployer Plan in which more than 100 employees of members of
the ERISA Group participate or under any Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, any of
which has resulted in the imposition of a Lien under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA or could reasonably be
expected to result in the posting of a bond or other security
46
under Section 401(a)(29) of the Internal Revenue Code or Section 307 of ERISA
or (iii) incurred any material liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower reviews the effect of applicable Environmental Laws on
the business and operations and properties of the Borrower and its Consolidated
Subsidiaries, in the course of which it identifies and evaluates actual and
potential associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of
properties presently or previously owned or as a result of accidents or
occurrences involving property or employees of the Borrower and its
Consolidated Subsidiaries, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility, restriction on transportation of any substance or
reduction in the level of or change in the nature of operations and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of its review, the Borrower has reasonably
concluded that applicable Environmental Laws, as they relate to matters known
to the Borrower, cannot reasonably be expected to result in a Material Adverse
Change.
SECTION 4.08. Taxes. United States consolidated Federal income tax
returns of the Borrower and its Subsidiaries as of the First Borrowing Date
have been examined and revenue agent reports have been received for all years
up to and including the fiscal year ended December 31, 1992. United States
consolidated Federal income tax returns of (i) Norfolk and Western Railway
Company and its consolidated subsidiaries have been examined and revenue agent
reports have been received through the fiscal year ended December 31, 1981 and
(ii) Southern Railway Company and its consolidated subsidiaries have been
examined and closed through the fiscal year ended May 31, 1982. The Borrower
and its Subsidiaries have filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary or are contesting such assessment in
good faith by appropriate proceedings, except where the failure to so pay or
file could not be reasonably expected to result in a Material Adverse Change.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.09. Significant Subsidiaries. (a) Each of the Borrower's
Significant Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and
has all corporate
47
powers and all material governmental licenses, authorizations, franchises,
consents and approvals required to carry on its business as now conducted,
except where the failure to have such licenses, authorizations, franchises,
consents and approvals could not be reasonably expected to result in a Material
Adverse Change.
(b) As of the date hereof the Borrower owns, and as of the Acquisition
Date the Borrower will own, directly or indirectly, all of the shares of
capital stock or other ownership interests of Norfolk Southern Railway Company
(or the successor thereto by merger, consolidation or share exchange or the
Person, if any, who has acquired substantially all of such corporation's
assets) except (i) directors' qualifying shares and (ii) not more than
1,100,000 shares of such corporation's $2.60 Cumulative Preferred Stock, Series
A. As of the date hereof the Borrower owns, and as of the Acquisition Date the
Borrower will own, directly or indirectly, all of the shares of capital stock
or other ownership interests of Norfolk and Western Railway Company (or the
successor thereto by merger, consolidation or share exchange or the Person, if
any, who has acquired substantially all of such corporation's assets) except
directors' qualifying shares.
SECTION 4.10. Not an Investment Company or a Holding Company. The
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The Borrower is not a "holding company", a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 4.11. Full Disclosure. All written information, taken as a
whole, heretofore furnished by the Borrower to any Agent or Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Borrower to the
Administrative Agent or Bank will be, true and accurate in all material
respects on the date as of which such information is stated or certified, it
being understood that any such representation and warranty as to the accuracy
of information in respect of Conrail and its Subsidiaries with respect to any
period ending, or at any time, prior to the Consummation Date is limited to the
Borrower's having no actual knowledge that such information is not accurate.
The Borrower has disclosed to the Banks or to the Administrative Agent for
circulation to the Banks pursuant to Section 5.01 in writing any and all facts
known to the Borrower which materially and adversely affect the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Borrower to perform its
obligations under this Agreement.
SECTION 4.12. Representations in Other Loan Documents True and
Correct. Each of the representations and warranties of each Obligor contained
in the other Loan Documents is true and correct in all material respects.
48
SECTION 4.13. Ownership of Property, Liens. The Borrower and its
Subsidiaries have good and marketable title (subject only to Liens permitted by
the Loan Documents) to or have valid leasehold interests in, and are in lawful
possession of, or, in the case of intellectual property, have valid rights to
use, all material properties and other material assets (real or personal,
tangible, intangible or mixed) necessary for the continued operation of their
businesses, taken as a whole.
SECTION 4.14. No Default. No Default has occurred and is continuing
and neither the Borrower nor any of its Subsidiaries is in default under or
with respect to any material contract, agreement, lease or other instrument to
which it is a party or by which its property is bound or affected where such
default could reasonably be expected to result in a Material Adverse Change.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any principal of or interest on any Loan remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to the
Administrative Agent for circulation to each of the Banks:
(a) promptly after they are publicly available, and in any event
within 105 days after the end of each fiscal year of the Borrower, (i)
a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, cash flows and changes in
stockholders' equity for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all
reported on in accordance with regulations of the Securities and
Exchange Commission by KPMG Peat Marwick or other independent public
accountants of nationally recognized standing, (ii) solely if such
fiscal year ended on or prior to the Consummation Date, a pro forma
condensed balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related pro
forma condensed statements of income, cash flows and changes in
stockholders' equity for such fiscal year, prepared in each case on
the basis of the assumption that Conrail is a wholly-owned
Consolidated Subsidiary of the Borrower at the end of such fiscal year
and at all times during such fiscal year and setting forth in each
case in comparative form the figures for the previous fiscal year and
certified in each case by the chief financial officer or the chief
accounting officer of the Borrower as to
49
having been prepared on a basis consistent with the pro forma
financial information in the Information Memorandum and (iii) solely
if such fiscal year ended on or prior to the Consummation Date, a
consolidated balance sheet of Conrail and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, cash flows and changes in
stockholders' equity for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year;
(b) promptly after they are publicly available, and in any event
within 60 days after the end of each of the first three quarters of
each fiscal year of the Borrower, (x) (i) a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of
such quarter, setting forth in comparative form the figures at the end
of the Borrower's previous fiscal year, (ii) the related consolidated
statement of income for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such quarter, setting forth
in comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, and
(iii) the related consolidated statement of cash flows for the portion
of the Borrower's fiscal year ended at the end of such quarter,
setting forth in comparative form the figures for the corresponding
portion of the Borrower's previous fiscal year, and (y) solely if such
fiscal quarter ended on or prior to the Consummation Date, (A) (i) a
pro forma condensed balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter, setting forth in
comparative form the figures at the end of the Borrower's previous
fiscal year, (ii) the related pro forma condensed statement of income
for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in comparative form
the figures for the corresponding quarter and the corresponding
portion of the Borrower's previous fiscal year, and (iii) the related
pro forma condensed statement of cash flows for the portion of the
Borrower's fiscal year ended at the end of such quarter, setting forth
in comparative form the figures for the corresponding portion of the
Borrower's previous fiscal year and prepared in each case on the basis
of the assumption that Conrail is a wholly-owned Consolidated
Subsidiary of the Borrower at the end of such fiscal quarter and at
all times during the portion of such fiscal year ended on the last day
of such fiscal quarter and (B)(i) a consolidated balance sheet of
Conrail and its Consolidated Subsidiaries as of the end of such
quarter, setting forth in comparative form the figures at the end of
Conrail's previous fiscal year, (ii) the related consolidated
statement of income for such quarter and for the portion of Conrail's
fiscal year ended at the end of such quarter, setting forth in
comparative form the figures for the corresponding quarter and the
corresponding portion of Conrail's previous fiscal year, and (iii) the
related consolidated statement of cash flows for the portion of
Conrail's fiscal year
50
ended at the end of such quarter, setting forth in comparative form
the figures for the corresponding portion of Conrail's previous fiscal
year, certified by the chief financial officer or the chief accounting
officer of the Borrower (m) in the case of information delivered by
the Borrower pursuant to clause (x) of this subsection (b) (subject to
normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency (except for changes in
generally accepted accounting principles concurred in by the
Borrower's independent public accountants) and (n) in the case of
information delivered by the Borrower pursuant to clause (y)(A) of
this subsection (b), as to having been prepared on a basis consistent
with the pro forma financial information in the Information
Memorandum;
(c) simultaneously with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the chief
financial officer, the chief accounting officer, treasurer or any
assistant treasurer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was
in compliance with the requirements of Section 5.07 on the date of
such financial statements and (ii) stating whether any Default exists
on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) within ten days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(e) promptly after the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) which the Borrower shall have
filed with the Securities and Exchange Commission;
(g) if and within ten days after the date any member of the ERISA
Group (i) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect
to any Plan which could reasonably be expected to constitute grounds
for a termination of such Plan under Title IV of ERISA or knows that
the plan administrator of any
51
Plan has given or is required to give notice of any such reportable
event, in each case which could, when considered together with all
other such reportable events which have occurred after the date
hereof, reasonably be expected to give rise in the aggregate to a
liability of members of the ERISA Group in excess of $50,000,000, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan in which more than 100 employees of members of the
ERISA Group participate is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c)
of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make
any payment or contribution due under any Multiemployer Plan in which
more than 100 employees of members of the ERISA Group participate or
any Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement, any of which has
resulted in the imposition of a Lien under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA or could reasonably
be expected to result in the posting of a bond or other security under
Section 401(a)(29) of the Internal Revenue Code or Section 307 of
ERISA, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member
of the ERISA Group is required or proposes to take;
(h) as soon as reasonably practicable after any officer of the
Borrower obtains knowledge of the commencement of, or of a threat of
the commencement of, any actions, suits or proceedings against the
Borrower or any of its Subsidiaries before any court or arbitrator or
any governmental body, agency or official which could reasonably be
expected to result in a Material Adverse Change or which in any manner
questions the validity or enforceability of the Loan Documents, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the nature of such pending or
threatened action, suit or proceeding and such additional information
with respect thereto as may be reasonably requested by any Bank; and
52
(i) from time to time such additional publicly available
information regarding the financial position or business of the
Borrower and its Consolidated Subsidiaries as any Bank through the
Administrative Agent may reasonably request.
SECTION 5.02. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, all property deemed by the Borrower to be useful
and necessary to its business in such order and condition as the
Borrower shall consider prudent.
(b) The Borrower will maintain purchased insurance and
self-insurance consistent with prudent industry and financial
practice, covering (without limitation) the risk of (i) physical
damage to real and personal property of the Borrower and each of its
Subsidiaries on an all risks basis and (ii) public liability of the
Borrower and each of its Subsidiaries. The Borrower will maintain
sufficient purchased insurance to prevent a material increase in the
Leverage Ratio as a result of a property or casualty loss or as a
result of the imposition of any reasonably foreseeable liability.
SECTION 5.03. Conduct of Business and Maintenance of Existence. The
Borrower will preserve, renew and keep in full force and effect its corporate
existence, except as permitted by Section 5.09, and its rights, privileges and
franchises reasonably deemed by the Borrower to be necessary or desirable in
the normal conduct of business, except where the failure to maintain such
rights, privileges and franchises could not be reasonably expected to result in
a Material Adverse Change. The Borrower will cause each of its Significant
Subsidiaries to continue to engage in business of the same general type as now
conducted by it, and will cause each of them to preserve, renew and keep in
full force and effect their respective corporate existence and their respective
rights, privileges and franchises reasonably deemed by the Borrower to be
necessary or desirable in the normal conduct of business, except where the
failure to maintain such rights, privileges and franchises could not be
reasonably expected to result in a Material Adverse Change. Nothing in this
Section 5.03 shall prohibit a merger, consolidation or share exchange pursuant
to which any two corporations shall be combined into a single corporation or
the acquisition by any corporation of substantially all of the assets of
another corporation.
SECTION 5.04. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, the Interstate Commerce Act,
Environmental Laws and ERISA and the rules and regulations thereunder) except
where the necessity of compliance therewith
53
is contested in good faith by appropriate proceedings or where such failure
could not be reasonably expected to result in a Material Adverse Change.
SECTION 5.05. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Significant Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities
(including, without limitation, tax liabilities and claims of materialmen,
warehousemen and the like which if unpaid would by law give rise to a Lien not
permitted by this Agreement), except where the same may be contested in good
faith by appropriate proceedings or could not be reasonably expected to result
in a Material Adverse Change, and will maintain, and will cause each
Significant Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any of the same.
SECTION 5.06. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives designated in writing by
any Bank at such Bank's expense, and subject to such limitations as the
Borrower may reasonably impose to insure safety or compliance with any
applicable legal or contractual restrictions, to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
corporate books and financial records and to discuss their respective affairs,
finances and accounts with their respective principal officers, all at such
reasonable times during normal business hours, after reasonable prior notice
and as often as may reasonably be desired.
SECTION 5.07. Financial Covenants. (a) Interest Coverage Ratio. As of
the last day of each fiscal quarter of the Borrower ended on or after the
Acquisition Date and ending during each period set forth below, the Interest
Coverage Ratio will not be less than the ratio set forth below opposite such
period:
PERIOD RATIO
3/31/97-6/29/98 1.45
6/30/98-12/30/98 1.70
12/31/98-12/30/99 1.95
12/31/99-12/30/00 2.35
12/31/00-12/30/01 2.85
Thereafter 3.40
(b) Minimum Consolidated Net Worth. At the last day of any fiscal
quarter ended on or after the First Borrowing Date, Consolidated Net Worth of
the Borrower
54
plus the Net Worth Add Back, in each case at such date, will not be less than
an amount equal to the sum of (i) $4,000,000,000 plus (ii) an amount equal to
50% of Adjusted Consolidated Net Income for each fiscal quarter of the Borrower
commencing on or after the First Borrowing Date and ending on or prior to the
date of determination, in each case, for which Adjusted Consolidated Net Income
is positive (but with no deduction on account of negative Adjusted Consolidated
Net Income for any fiscal quarter of the Borrower) plus (iii) 100% of the
aggregate net proceeds, including the fair market value of property other than
cash (as determined in good faith by the Board of Directors of the Borrower),
received by the Borrower from the issuance and sale after the First Borrowing
Date of any capital stock of the Borrower (other than the proceeds of any
issuance and sale of any capital stock (w) to a Subsidiary of the Borrower, (x)
to directors as qualifying shares, (y) in the ordinary course of business in
connection with now or hereafter existing employee stock purchase plans and
other employee compensation arrangements or (z) which is required to be
redeemed, or is redeemable at the option of the holder, at any time) or in
connection with the conversion or exchange of any Debt of the Borrower into
capital stock of the Borrower after the date hereof. For purposes of this
subsection (b), the following terms have the following meanings:
"Net Worth Add Back" means, at any date, an amount equal to the lesser
of (A) $600,000,000 and (B) the aggregate amount of Adjustment Amounts for all
fiscal quarters of the Borrower commencing on or after the First Borrowing Date
and ending on or prior to the date of determination.
"Adjustment Amount" means, for any fiscal quarter, an amount equal to
the absolute amount by which Consolidated Net Income for such quarter was
reduced by reason of special charges taken by the Borrower and its Consolidated
Subsidiaries in connection with the Acquisition and the Initial Conrail
Investment.
"Adjusted Consolidated Net Income" means, for any fiscal quarter, an
amount equal to Consolidated Net Income for such fiscal quarter plus the
Adjustment Amount, if any, for such fiscal quarter; provided that the aggregate
amount of the Adjustment Amounts added to Consolidated Net Income for purposes
of such computations hereunder shall not exceed $600,000,000.
(c) Leverage Ratio. The Leverage Ratio will not exceed, at any time
on or after the Acquisition Date during any period set forth below, the
applicable ratio set forth below for such period:
55
PERIOD RATIO
3/31/97-6/29/98 5.50
6/30/98-12/30/98 5.10
12/31/98-12/30/99 4.75
12/31/99-12/30/00 4.00
12/31/00-12/30/01 3.30
12/31/01-12/30/02 2.75
Thereafter 2.35
SECTION 5.08. Negative Pledge. The Borrower will not create, assume or
suffer to exist any Lien on any Investment in a Subsidiary now directly owned
or hereafter directly acquired by the Borrower, except Liens created by the
Collateral Documents and Liens described in clause (i) below. Neither the
Borrower nor any Subsidiary will create, assume or suffer to exist any Lien on
any other asset now owned or hereafter acquired by it except:
(a) Liens created by the Collateral Documents;
(b) Liens existing on the date of this Agreement that have attached
(or that hereafter attach, pursuant to agreements in effect on the date hereof,
to assets not owned by Persons subject to such agreements on the date hereof)
securing Debt in an aggregate principal amount not exceeding $900,000,000;
(c) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event;
(d) any Lien (created pursuant to an equipment trust agreement,
conditional sale agreement, chattel mortgage or lease or otherwise) on any
asset securing Debt incurred or assumed for the purpose of financing all or any
part of the cost of acquiring, constructing or rebuilding such asset;
56
(e) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Borrower or a Subsidiary and
not created in contemplation of such event;
(f) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(g) Liens created, assumed or existing on assets associated with real
estate development projects or development joint ventures;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(i) inchoate tax Liens;
(j) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any obligation
in an amount exceeding $600,000,000 and (iii) do not in the aggregate
materially detract from the value of its material assets or materially impair
the use thereof in the operation of its business;
(k) Liens on "margin stock" (as defined in the Margin Regulations), if
and to the extent that the value of such margin stock exceeds 25% of the total
assets of the Borrower and its Subsidiaries subject to this Section; and
(l) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time outstanding
not in excess of $600,000,000.
SECTION 5.09. Consolidations, Mergers and Sales of Assets. (a) The
Borrower will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its assets to any other Person; provided that the Borrower
may merge or consolidate with another Person or sell all or substantially all
of its assets to another Person if:
(A) the Person surviving such merger or consolidation, or the Person
that acquires substantially all of the Borrower's assets, is a business
corporation incorporated under the laws of a State of the United States of
America;
(B) the Person surviving such merger or consolidation, if not the
Borrower, or the Person that acquires substantially all of the Borrower's
assets, (i) executes and
57
delivers to the Administrative Agent and each of the Banks an instrument in
form reasonably satisfactory to the Administrative Agent pursuant to which such
Person assumes all of the Borrower's obligations under the Loan Documents as
theretofore amended or modified, including the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal
of and interest on each Loan made to the Borrower pursuant to this Agreement,
the full and punctual payment of all other amounts payable hereunder and the
performance of all of the other covenants and agreements contained herein and
(ii) if requested by the Required Banks, delivers an opinion of counsel
satisfactory to the Required Banks covering the matters set forth in Exhibits
D-1 through D-5, in each case after giving effect to such merger, consolidation
or sale of assets, as the case may be; and
(C) immediately after giving effect to such merger, consolidation or
sale of assets, no Default shall have occurred and be continuing and the
representations and warranties of the Borrower contained in this Agreement
shall be true in all material respects as if made immediately after such
merger, consolidation or sale of assets.
It is understood that: (i) the reference in Section 4.04(c) to changes
in respect of the Borrower and its Consolidated Subsidiaries refers to changes
from the business and consolidated financial position of Norfolk Southern
Corporation and its Consolidated Subsidiaries at such date, including changes
that occur as a result of another Person becoming the Borrower pursuant to such
a merger, consolidation or sale of assets and (ii) the references in Section
6.01(l) to individuals who were directors of the Borrower at any time before
such a merger, consolidation or sale of assets refers only to individuals who
were directors of the Person who was the Borrower at that time. No Person who
was the Borrower shall be released from any of its obligations hereunder upon
the assumption of such obligations by another Person. For purposes of this
Section, the term "consolidate with" means a transaction in which the Borrower
and another corporation consolidate to form a new corporation pursuant to the
laws of their jurisdictions of incorporation and in which the Borrower and such
other corporation cease to exist as separate corporate entities.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, make any Asset Sale (i) unless the consideration therefor is not less than
the fair market value of the related asset (as determined in good faith by the
chief financial officer of the Borrower) and (ii) unless, after giving effect
thereto, (a) the aggregate fair market value of the assets disposed of in all
Asset Sales (other than Acquisition Asset Sales) (1) during any fiscal year of
the Borrower ended after the Closing Date would not exceed $350,000,000 and (2)
from and after the Closing Date would not exceed $1,000,000,000 and (b) the
aggregate fair market value of the assets disposed of in all Acquisition Asset
Sales from and after the Closing Date would not exceed $1,500,000,000; provided
that (x) the consideration for any Asset Sale shall consist solely of (A) cash
payable at closing or (B) instruments obligating the purchaser (or
58
an affiliate) to make cash payments at a subsequent date, in an aggregate
amount not to exceed 50% of the purchase price with respect to such Asset Sale
and (y) the aggregate principal amount of instruments described in clause (x)
(B) of this proviso at any one time held by the Borrower and its Subsidiaries
will not exceed $200,000,000 with respect to all Asset Sales (other than
Acquisition Asset Sales) and will not exceed $0 with respect to all Acquisition
Asset Sales. For purposes of this subsection, "Acquisition Asset Sale" means
any Asset Sale (i) the consummation of which is an express condition (either
precedent or subsequent) to the approval by the STB of the direct or indirect
acquisition of control of Conrail by the Borrower or (ii) which is consummated
in connection with, or as a condition precedent to, the consummation of a
merger or other business combination between the Borrower or any of its
Subsidiaries and Conrail (including without limitation the Merger).
SECTION 5.10. Use of Proceeds. The proceeds of the Term Loans will be
used by the Borrower to finance the Acquisition, to pay related fees and
expenses and, at the option of the Borrower, to refinance Debt of the Borrower
or any Subsidiary incurred in reliance on Section 5.11(i), Revolving Credit
Loans or Money Market Loans outstanding on the Acquisition Date. The proceeds
of the Revolving Credit Loans and Money Market Loans made prior to the
Acquisition Date will be used by the Borrower to make the Initial Conrail
Investment, to refinance a portion of the existing bank debt of the Borrower
(including the Existing Credit Agreement), and for other general corporate
purposes and may be used by the Borrower to repay maturing commercial paper.
The proceeds of the Revolving Credit Loans and Money Market Loans made on or
after the Acquisition Date will be used by the Borrower to finance the
Acquisition, to pay related fees and expenses, and for other general corporate
purposes (including without limitation, at the option of the Borrower, to
refinance Debt of the Borrower or any Subsidiary incurred in reliance on
Section 5.11(i), Revolving Credit Loans or Money Market Loans outstanding on
the Acquisition Date).
SECTION 5.11. Limitation on Debt. The Borrower will not, and will not
permit any of its Subsidiaries to, incur or at any time be liable with respect
to any Debt except:
(a) Debt under the Loan Documents;
(b) Debt owing to the Borrower or a Subsidiary all of the outstanding
common stock of which (other than directors' qualifying shares) is owned
directly or indirectly by the Borrower;
(c) Debt of Subsidiaries not otherwise permitted by this Section in an
aggregate principal amount at any time outstanding not exceeding $500,000,000;
59
(d) Debt of the Borrower (and not of any Subsidiary) not otherwise
permitted by this Section in an aggregate principal amount at any time
outstanding not exceeding $100,000,000;
(e) Guarantees (i) by the Borrower of the Debt of a Subsidiary, (ii)
by any Significant Subsidiary of Debt of the Borrower and (iii) by any
Subsidiary of Debt of its own Subsidiaries, provided that the Guaranteed Debt
is permitted under this Section;
(f) Debt of any Person at the time such Person becomes a Subsidiary
and not incurred in contemplation of such event;
(g) Debt of the Borrower or a Subsidiary in existence on the Closing
Date and extensions, renewals and refinancings thereof (it being understood
that any Debt under the Existing Credit Agreement shall be refinanced on the
First Borrowing Date solely with Loans);
(h) Debt of Subsidiaries incurred or assumed (in connection with an
equipment trust agreement, conditional sale agreement, chattel mortgage or
lease or otherwise) for the purpose of directly or indirectly financing all or
any part of the cost of acquiring, constructing or rebuilding any asset and any
renewal, extension or refinancing thereof; provided that the aggregate
principal amount of such Debt (other than extensions, renewals and
refinancings) incurred or assumed in any fiscal year of the Borrower pursuant
to this clause (h) shall not exceed $350,000,000;
(i) short-term Debt of the Borrower (and not of any Subsidiary)
evidenced by commercial paper or similar instruments; and
(j) Debt of the Borrower (and not of any Subsidiary) which matures not
earlier than six months after the final maturity date of the Term Loans.
SECTION 5.12. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any Investment in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or
effect, any transaction with, any Affiliate except on an arm's-length basis on
terms no less favorable in any material respect to the Borrower or such
Subsidiary than could have been obtained from a third party who was not an
Affiliate; provided that the foregoing provisions of this Section shall not
prohibit (i) the declaration or payment of any lawful dividend or other payment
ratably in respect of all of its capital stock of the relevant class or (ii)
transactions entered into in the ordinary course of business with joint
ventures in which the Borrower has a direct or indirect interest to the extent
the Borrower has determined
60
in its reasonable judgment that the business purpose achieved by such
transactions renders the terms thereof reasonable.
SECTION 5.13. No Modification of the Voting Trust Agreement Without
Bank Consent. The Borrower will not, and will not permit any of its
Subsidiaries to, consent to or solicit any amendment or supplement to, or any
waiver or other modification of, the Voting Trust Agreement in any manner which
could reasonably be expected to materially adversely affect the rights of the
Banks under the Loan Documents or their ability to enforce the same.
SECTION 5.14. Limitation on Restrictions Affecting Subsidiaries.
Neither the Borrower nor any of its Subsidiaries will enter into, or suffer to
exist, any agreement with any Person, other than the Loan Documents, which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Debt owed to the Borrower or any Subsidiary, (b)
make loans or advances to the Borrower or any Subsidiary, (c) transfer any of
its properties or assets to Borrower or any Subsidiary or (d) create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired as security for the
obligations of the Borrower under the Loan Documents; provided that the
foregoing shall not apply to (i) restrictions in effect on the date of this
Agreement contained in agreements governing Debt outstanding on the date of
this Agreement (or in the case of Debt of a Person which hereafter becomes a
Subsidiary, outstanding on the date such Person becomes a Subsidiary and not
created in contemplation of that event) and, if such Debt is renewed, extended
or refinanced, restrictions in the agreements governing the renewed, extended
or refinancing Debt (and successive renewals, extensions and refinancings
thereof) if such restrictions are no more restrictive in any material respect
than those contained in the agreements governing the Debt being renewed,
extended or refinanced, (ii) restrictions contained in agreements governing
Debt incurred pursuant to Section 5.11(c), (d), (e) and (j) provided that such
restrictions are no more restrictive in any material respect than those
contained in the Loan Documents, (iii) customary non-assignment provisions in
leases, licenses and other contracts, (iv) restrictions contained in agreements
governing Debt incurred by special purpose Subsidiaries in connection with the
financing of equipment and other asset acquisitions, provided that such
restrictions only apply to such special purpose Subsidiaries and their
respective assets, (v) in the case of non-wholly-owned Subsidiaries, customary
restrictions contained in joint venture or similar agreements, (vi)
restrictions required by applicable law and (vii) restrictions in agreements
establishing consensual Liens permitted under Section 5.08 with respect to the
assets subject to such Liens.
SECTION 5.15. Fiscal Year. The Borrower will not change its fiscal
year from a fiscal year ending December 31.
61
SECTION 5.16. Hedging Facilities. The Borrower will, at its sole cost
and expense not later than 60 days following the Acquisition Date, enter into
and thereafter maintain in full force and effect interest rate cap or swap
agreements or similar agreements on such terms as shall be reasonably
acceptable to the Administrative Agent and that shall result in the interest
rate payable on not less than (i) at any time prior to the Consummation Date,
30% of Total Debt at such time and (ii) at any time on and after the
Consummation Date, 40% of Total Debt at such time, being effectively (or in
fact) fixed.
SECTION 5.17. Restricted Investments. The Borrower will not, and will
not permit any Subsidiary to, make any Restricted Investments prior to the
Consummation Date.
SECTION 5.18. Consummation. The Borrower will use its commercially
reasonable best efforts to cause the Consummation Date to occur at the earliest
practicable time.
SECTION 5.19. Additional Guarantors. The Borrower will cause each
Person which becomes a Significant Subsidiary after the Acquisition Date to
become a Subsidiary Guarantor as promptly as practicable after (but in any
event within 30 days of) the date it becomes a Significant Subsidiary.
ARTICLE 6
DEFAULT
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall default in the payment when due of any
principal of any Loan, or shall default in the payment, within five
days of the due date thereof, of any interest, fees or other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.19, inclusive;
(c) any Obligor shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those covered by
clause (a) or (b) above) for 10 Domestic Business Days after written
notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Bank;
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(d) any representation, warranty or certification made (or deemed
made) by any Obligor in any Loan Document or in any certificate,
financial statement or other document delivered pursuant to any Loan
Document shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Debt when due or within any applicable
grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the
holder of such Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Borrower or any Significant Subsidiary (including for
purposes of this subsection Conrail and, to the extent they would meet
the criteria specified in the definition of Significant Subsidiary,
its Subsidiaries) shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary (including for
purposes of this subsection Conrail and, to the extent they would meet
the criteria specified in the definition of Significant Subsidiary,
its Subsidiaries) seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Significant Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
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(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $50,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which, in any such
case, could reasonably be expected to cause one or more members of the
ERISA Group to incur a current payment obligation in excess of
$100,000,000;
(j) a judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower or any Significant
Subsidiary and such judgment or order shall continue unsatisfied,
unreversed, unvacated, undischarged and unstayed for a period of 30
days;
(k) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act)
of 30% or more of the outstanding shares of common stock of the
Borrower;
(l) at any time Continuing Directors shall not constitute a
majority of the board of directors of the Borrower ("Continuing
Director" means at any time each (i) individual who was a director of
the Borrower 24 months before such time or (ii) individuals who were
nominated or elected to be a director of the Borrower by at least
two-thirds of the Continuing Directors at the time of such nomination
or election);
(m) any Lien created by any of the Collateral Documents shall at
any time fail to constitute a valid and (to the extent required by the
Collateral Documents) perfected Lien on any material portion of the
Collateral purported to be subject thereto, securing the obligations
purported to be secured thereby, with the priority required by the
Loan Documents, or any Obligor shall so assert in writing;
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(n) the Guarantee of any Subsidiary Guarantor under the
Subsidiary Guarantee Agreement shall be invalid or unenforceable, or
any Obligor shall so assert in writing; or
(o) for any calendar quarter commencing after the Acquisition
Date (or if the record date with respect to Conrail dividends or
distributions payable during the first such quarter shall have been
prior to the Acquisition Date, for any calendar quarter after the
first such quarter) the aggregate amount of dividends or distributions
received by the Borrower in respect of shares of capital stock of
Conrail (either directly, through a dividend or distribution made by
the trustee under the Voting Trust or through a dividend or
distribution made by the Offeror to the Borrower with respect to a
dividend or distribution made by the trustee under the Voting Trust to
the Offeror or otherwise ) shall be less than $0.40375 per share;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by the Required Banks, by
notice to the Borrower declare the Loans (together with accrued interest
thereon) to be, and the Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified
in clause (g) or (h) above with respect to any Obligor, without any notice to
any Obligor or any other act by the Administrative Agent or the Banks, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Loan Documents as are
delegated to the
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Administrative Agent by the terms thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Xxxxxx Guaranty Trust Company of
New York and Xxxxxxx Xxxxx Capital Corporation shall have the same rights and
powers under the Loan Documents as any other Bank and may exercise or refrain
from exercising the same as though it were not an Agent, and Xxxxxx Guaranty
Trust Company of New York and Xxxxxxx Xxxxx Capital Corporation and their
respective affiliates may engage in any kind of business with the Borrower or
any Subsidiary or affiliate of the Borrower as if each of them were not an
Agent hereunder.
SECTION 7.03. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent
shall not be required to take any action with respect to any Default, except as
expressly provided in the Loan Documents.
SECTION 7.04. Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. Neither Agent nor any of their
respective affiliates nor any of the respective directors, officers, agents or
employees of the foregoing shall be liable for any action taken or not taken by
it in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither Agent nor any of their respective affiliates nor any of the
respective directors, officers, agents or employees of the foregoing shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any Obligor; (iii) the satisfaction of any condition
specified in Article 3, except, in the case of the Administrative Agent,
receipt of items required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify each Agent, its affiliates and their respective
directors,
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officers, agents and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitee's gross negligence or willful misconduct) that such
indemnitee may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitee hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Banks and the Borrower. Upon
any such resignation, the Required Banks shall have the right to appoint a
successor Administrative Agent reasonably acceptable to the Borrower. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of its appointment as Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
SECTION 7.09. Agents' Fees. The Borrower shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Agents.
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ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Fixed
Rate Loan:
(a) the Administrative Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not being
offered to the Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the
Administrative Agent that the Adjusted CD Rate or the London Interbank
Offered Rate, as the case may be, as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the case may be, for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist (which
notice the Administrative Agent shall deliver forthwith upon its becoming aware
thereof), (i) the obligations of the Banks to make CD Loans or Euro-Dollar
Loans, as the case may be, or to continue or convert outstanding Loans as or
into CD Loans or Euro-Dollar Loans, as the case may be, shall be suspended and
(ii) each outstanding CD Loan or Euro-Dollar Loan, as the case may be, shall be
converted into a Base Rate Loan on the last day of the then current Interest
Period applicable thereto. Unless the Borrower notifies the Administrative
Agent at least two Domestic Business Days before the date of any Fixed Rate
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, (i) if such Fixed Rate Borrowing is a
Committed Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it
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unlawful or impossible for any Bank (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans and such Bank shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Administrative Agent that the circumstances giving rise to
such suspension no longer exist (which notice such Bank shall give forthwith
upon its becoming aware thereof), the obligation of such Bank to make
Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. If such notice is given, each Euro-Dollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day
of the then current Interest Period applicable to such Euro-Dollar Loan if such
Bank may lawfully continue to maintain and fund such Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to
make Committed Loans or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve, special deposit, insurance assessment or
similar requirement (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage or Assessment Rate and (ii) with respect to any
Euro-Dollar Loan, any such requirement with respect to which such Bank is
entitled to compensation during the relevant Interest Period under Section
2.07) against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans or its obligation to make Fixed Rate Loans, and
the result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement with respect thereto, by an
amount deemed by such Bank to be material, then, within 15
69
days after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event, past or prospective, of which it has knowledge which will
entitle such Bank to compensation pursuant to this Section, or which such Bank
believes is reasonably likely to entitle such Bank to compensation pursuant to
this Section, and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. A certificate of any Bank claiming compensation under this Section
(for itself or for a Participant) and setting forth the additional amount or
amounts to be paid to it hereunder and indicating in reasonable detail the
computation thereof shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
(d) The Borrower shall not be liable pursuant to this Section to any
Bank to compensate it for any cost or reduction incurred or suffered more than
45 days before receipt by the Borrower of a notice from such Bank referring to
the event that gave rise to such cost or reduction.
(e) This Section 8.03 shall not require the Borrower to reimburse any
Bank for any Taxes or Other Taxes which are otherwise covered by the payment of
additional amounts or the indemnity set forth in Section 8.04(b) or (c),
respectively.
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SECTION 8.04. Taxes. (a) For the purposes of this Section 8.04 the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Bank and the Administrative
Agent, taxes imposed on its income, and franchise, branch profits or similar
taxes imposed on it, by a jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Bank, in which
its Applicable Lending Office is located and (ii) in the case of each Bank, any
United States withholding tax imposed on such payments but only to the extent
that such Bank is subject to United States withholding tax at the time such
Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note.
(b) Any and all payments by the Borrower to or for the account of any
Bank or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Bank or the Administrative 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, (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt evidencing
payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto; provided, however, that
the Borrower shall not be required to indemnify any Bank or the Administrative
Agent under this Section 8.04 for any liability arising as a result of such
Bank's or Administrative Agent's willful misconduct or gross negligence. This
indemnification shall be paid within 30 days
71
after such Bank or the Administrative Agent (as the case may be) makes written
demand therefor (which demand shall identify the nature and the amount of Taxes
and Other Taxes for which indemnification is being sought).
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower and the Administrative Agent with true, accurate and complete (i)
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, executed in duplicate,
certifying that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which exempts the Bank from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Bank or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade or
business in the United States or (ii) if the interest payments made to a Bank
constitute "portfolio interest" as defined under Section 881(c) of the Internal
Revenue Code, Internal Revenue Service form W-8, or any successor form
prescribed by the Internal Revenue Service, executed in duplicate, and a
certificate representing that such Bank is not a bank for purposes of Section
881(c) of the Internal Revenue Code, is not a 10 percent shareholder of the
Borrower (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) and is not a "controlled foreign corporation" related to the Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue Code). Each
such Bank further agrees (but only so long as such Bank is lawfully able to do
so) to deliver to the Borrower and the Administrative Agent duly completed
copies of the above-mentioned Internal Revenue Service forms on or before the
earlier of (i) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding of U.S. federal income tax and (ii) 30 days after
the occurrence of any event which would require a change in the most recent
form previously delivered to the Borrower and the Administrative Agent.
(e) For any period with respect to which a Bank has failed to provide
the Borrower or the Administrative Agent with the appropriate form or
certificate pursuant to Section 8.04(d) (unless such failure is due to a change
in treaty, law or regulation occurring subsequent to the date on which such
form or certificate originally was required to be provided), or with respect to
which any representation or certification on any such form or certificate is,
or proves to be, materially incorrect, false or misleading when so made such
Bank shall not be entitled to receive additional amounts or indemnification
under Section 8.04(b) or (c), respectively with respect to Taxes imposed by the
United States and such Bank shall indemnify and reimburse the
72
Borrower for any Taxes or Other Taxes which were required to be withheld but
which were not withheld as a result of such Bank's failure to provide the
appropriate form or certificate or such Bank's materially incorrect, false or
misleading representations or certifications; provided that if a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, becomes
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps (at such Bank's cost and expense) as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section, then (i) such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Bank, such change (x) will eliminate or reduce any such additional payment
which may thereafter accrue and (y) is not otherwise disadvantageous to such
Bank or (ii) if such Bank does not change the jurisdiction of its Applicable
Lending Office pursuant to (i), the Borrower shall have the right to designate
a substitute bank or banks pursuant to Section 8.06 hereof.
(g) Upon the reasonable request of the Borrower, and at the Borrower's
expense, each Bank shall use reasonable efforts to cooperate with the Borrower
with a view to obtain a refund of any Taxes which were not correctly or legally
imposed and for which the Borrower has indemnified such Bank under this Section
8.04 if obtaining such refund would not, in the sole judgment of such Bank, be
disadvantageous to such Bank; provided that nothing in this Section 8.04(g)
shall be construed to require any Bank to institute any administrative
proceeding (other than the filing of a claim for any such refund) or judicial
proceeding to obtain any such refund. If a Bank shall receive a refund from a
taxing authority (as a result of any error in the imposition of Taxes by such
taxing authority) of any Taxes paid by the Borrower pursuant to subsection (b)
or (c) above, such Bank shall promptly pay to the Borrower the amount so
received without interest (other than interest received from the taxing
authority with respect to such refund) and net of out-of-pocket expenses;
provided that such Bank shall only be required to pay to the Borrower such
amounts as such Bank in its sole discretion determines are attributable to
Taxes paid by the Borrower. In the event such Bank or the Administrative Agent
is required to repay the amount of such refund (including interest, if any),
the Borrower, upon the request of such Bank or the Administrative Agent (as the
case may be), agrees to promptly return to such Bank or the Administrative
Agent the amount of such refund and interest, if any (plus penalties, interest
and other charges imposed in connection with the repayment of such amounts by
such Bank or the Administrative Agent).
(h) Notwithstanding the foregoing, nothing in this Section 8.04 shall
be construed to (i) entitle the Borrower or any other Persons to any
information determined by any Bank or the Administrative Agent, in its sole
discretion, to be
73
confidential or proprietary information of such Bank or the Administrative
Agent, to any tax or financial information of any Bank or the Administrative
Agent or to inspect or review any books and records of any Bank or the
Administrative Agent, or (ii) interfere with the rights of any Bank or the
Administrative Agent to conduct its fiscal or tax affairs in such manner as it
deems fit.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate. If
(i) the obligation of any Bank to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03(a) or 8.04, or the Borrower is
required to make any additional payments under Section 8.04 in respect of any
payments to any Bank, in either case with respect to its Euro-Dollar Loans or
its CD Loans, and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, has been repaid (or converted to a Base Rate Loan), all payments of
principal which would otherwise be applied to repay such Fixed Rate Loans shall
be applied to repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If any Bank has demanded
compensation under Section 8.03 or 8.04, the Borrower is required to make any
additional payments under Section 8.04 in respect of any payment to any Bank or
any Bank defaults in any of its obligations to make any Loan, the Borrower
shall have the right to designate a substitute bank or banks reasonably
acceptable to the Administrative Agent (which may be one or more of the Banks)
to purchase the Loans and assume the Commitments of such Bank and each Bank
agrees in such event, if the Borrower so designates a substitute or
substitutes, it will sell its Loans and assign its rights under this Agreement
to such a substitute or substitutes as soon
74
as reasonably possible (and in any event within 30 days) after such designation
on substantially the terms set forth in Exhibit F for a payment equal to the
principal amount of its Loans plus all interest on such Loans and all facility
fees accrued but unpaid to but excluding the date of such payment plus any loss
or expense incurred by it (or by an existing or prospective Participant in the
related Loan), in connection with such payment, including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment, as
reasonably determined by it.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address set forth on
the signature pages hereof, (y) in the case of any Bank, at its address set
forth in its Administrative Questionnaire or (z) in the case of any party, such
other address as such party may hereafter specify for the purpose by notice to
the Administrative Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in the Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay
(i) all reasonably incurred out-of-pocket expenses of the Agents, including
fees and disbursements of special counsel for the Agents, in connection with
the preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Administrative Agent and each Bank, including fees and disbursements of
counsel, in connection with such
75
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an ""Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's gross
negligence or willful misconduct.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Loan payable to it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Loan payable to such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans payable to the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans shall be shared by the Banks
pro rata; provided that nothing in this Section shall impair the right of any
Bank to exercise any right of set-off or counterclaim it may have against any
Obligor and to apply the amount subject to such exercise to the payment of
indebtedness of such Obligor other than its indebtedness under the Loan
Documents. Each Obligor agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in a Loan acquired
pursuant to the foregoing arrangements may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Obligor in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of any Agent are affected thereby, by such Agent); provided
that no such amendment or waiver shall, unless signed by all the Banks having
Exposures in respect of the affected Class, (i) increase any Commitment of any
Bank or subject any Bank to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for the termination of any
76
Commitment; and provided further that no such amendment or waiver shall, unless
signed by all Banks, (x) change the percentage of the Exposures which shall be
required for the Banks to take any action under this Section or any other
provision of the Loan Documents; (y) permit termination of the Subsidiary
Guarantee Agreement (except, as to any Guarantor, as provided in Section 16
thereof) or (z) permit the release of all or substantially all of the
Collateral (except as provided in Section 9.05(b)); and provided further that
no such amendment or waiver shall reduce the principal of or rate of interest
on any Money Market Loan or postpone the date fixed for any payment of
principal of or interest on any Money Market Loan unless signed by the Bank
which has made such Money Market Loan.
(b) Any provision of the Collateral Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
relevant Obligor and the Administrative Agent with the consent of the Required
Banks; provided that no such amendment or waiver shall, unless signed by all
the Banks, effect or permit a release of all or substantially all of the
Collateral. Notwithstanding the foregoing, Collateral shall be released from
the Lien of the Collateral Documents (i) from time to time as necessary to
effect any sale of assets permitted by the Loan Documents and (ii) promptly
upon the occurrence of a Release Event, and in either such case the
Administrative Agent shall, at the expense of the Borrower, execute and deliver
all documents reasonably requested to evidence such release.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement except as
contemplated by Section 5.09 or with the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in any or all of
its Commitments or Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii) or (iii) or (x), (y) or (z) of
Section 9.05(a) without the consent of the Participant. The Borrower agrees
that each
77
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Section 2.07 and Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all or a portion of its rights and
obligations under this Agreement, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit F hereto executed by such Assignee and such
transferor Bank; provided that no Bank may so assign to one Assignee an
Exposure less than $10,000,000; and provided further that after giving effect
to such assignment, the Exposure of the assignor Bank (together with its
affiliates) shall be either zero or $25,000,000 or more. Each such assignment
shall be made with (and subject to) the subscribed consent of the Borrower and
the Administrative Agent (which shall not, in either case, be unreasonably
withheld); provided that if an Assignee is an affiliate of such transferor Bank
or is a Bank immediately prior to such assignment, or if at the time an Event
of Default shall have occurred and be continuing, no such consent shall be
required. Upon execution and delivery of such instrument, recording of such
instrument as provided in Section 2.16(a), obtainment of the foregoing required
consents (if any) and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with Commitment(s) and/or Loan(s) as
set forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. In connection with
any such assignment, the transferor Bank shall pay to the Administrative Agent
an administrative fee for processing such assignment in the amount of $3,000.
If the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall, prior to the first date on which interest
or fees are payable hereunder for its account, deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with
Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04,
(and the Borrower shall not incur any greater liability for Taxes or Other
Taxes pursuant to
78
Section 8.04), than such Bank would have been entitled to receive with respect
to the rights transferred (or than the Borrower was liable for with respect to
the transferor Bank), unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. Governing Law; Submission to Jurisdiction, WAIVER OF
JURY TRIAL. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. EACH OF THE BORROWER, THE AGENTS AND THE
BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 9.08. Counterparts; Integration; Effectiveness. (a) This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. The Loan Documents constitute the entire agreement
and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
(b) This Agreement shall become effective on the date that the
Administrative Agent shall have received counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Administrative Agent
in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party); provided
that this Agreement shall not become effective unless the Closing Date is on or
prior to March 1, 1997.
SECTION 9.09. Confidentiality. Each Agent and each Bank agrees to keep
any information delivered or made available by any Obligor pursuant to the Loan
Documents confidential from anyone other than persons employed or retained by
such Bank and its affiliates who are engaged in evaluating, approving,
structuring or administering the credit facility contemplated hereby; provided
that nothing herein shall prevent either Agent or any Bank from disclosing such
information (a) to any
79
other Bank or to any Agent, (b) to any other Person if reasonably incidental to
the administration of the credit facility contemplated hereby, (c) upon the
order of any court or administrative agency, (d) upon the request or demand of
any regulatory agency or authority, (e) which had been publicly disclosed other
than as a result of a disclosure by any Agent or any Bank prohibited by this
Agreement, (f) in connection with any litigation to which any Agent, any Bank
or its subsidiaries or Parent may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to such Bank's or
Agent's legal counsel and independent auditors and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed Participant or Assignee.
SECTION 9.10. Termination. This Agreement shall terminate upon the
termination of all Commitments and repayment in full of the aggregate
outstanding principal amount of the Loans, accrued interest thereon, and all
fees and expenses and other amounts due and payable at such time; provided that
the provisions of Sections 7.06, 8.03, 8.04 and 9.03 shall survive such
termination.
SECTION 9.11. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in the Margin Regulations) as collateral in the
extension or maintenance of the credit provided for in this Agreement. Each of
the Banks acknowledges that the proceeds of the Loans hereunder will be used as
described in Section 5.10.
SECTION 9.12. Representations of Banks. (a) Each of the Banks
represents and warrants to the Borrower that it is a corporation or association
duly incorporated or organized and validly existing under the laws of its
jurisdiction of incorporation or organization, as the case may be.
(b) Each of the Banks represents and warrants to the Borrower that
this Agreement constitutes a valid and binding agreement of it enforceable
against it in accordance with the terms hereof subject to (i) applicable
receivership, insolvency, reorganization, moratorium and other laws affecting
the rights of creditors of banks or other institutions generally from time to
time in effect and (ii) equitable principles of general applicability.
80
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
NORFOLK SOUTHERN CORPORATION
By /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Title: Vice President and Treasurer
Three Commercial Place
Norfolk, Virginia 23510-2191
Attention: Xxxxxxx X. Xxxxx
Vice President and Treasurer
Facsimile number: 000-000-0000
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Title: Vice President
XXXXXXX XXXXX CAPITAL
CORPORATION
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
BANK OF MONTREAL
By /s/ X.X. XxXxxxxx
----------------------------------------
Title: Director
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
BANKERS TRUST COMPANY
By /s/ Xxxx Xxxxxxx
----------------------------------------
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ Xxxxx X. X'Xxxxxxxx
----------------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Title: First Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Title: Assistant Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxxx Xxxxx
----------------------------------------
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxx Xxxxxx
----------------------------------------
Title: Assistant Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
Title: Vice President
THE FUJI BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED - NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxx
----------------------------------------
Title: Senior Vice President
LTCB TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Title: Executive Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxxx Xxxxx xx Xxxx
----------------------------------------
Title: Senior Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Manager
THE SANWA BANK, LIMITED
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
SOCIETE GENERALE
By /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President, Manager
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Title: Joint General Manager
THE TOKAI BANK, LIMITED, NEW YORK
BRANCH
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Title: Deputy General Manager
TORONTO DOMINION (NEW YORK), INC.
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ Xxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxx Xxxxx
----------------------------------------
Title: Vice President
WACHOVIA BANK OF NORTH
CAROLINA, N.A.
By /s/ W. Xxxxxxx Xxxxxxx, Xx.
----------------------------------------
Title: Vice President
ABN AMRO BANK N.V., NEW YORK
BRANCH
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Group Vice President
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Assistant Vice President
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By /s/ X. Xxxxxxxxx
----------------------------------------
Title: Vice President
By /s/ X. Xxxxxxx
----------------------------------------
Title: Assistant Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Title: Vice President
BANQUE PARIBAS
By /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Title: Group Vice President
By /s/ Xxxx X. XxXxxxxxx
----------------------------------------
Title: Vice President
COMMERZBANK AG, NEW YORK
BRANCH
By /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ Xxxxx X'Xxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxx XxXxxxx-Xxxxx
----------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK NEDERLAND
By /s/ Xxx Xxxxx
----------------------------------------
Title: Vice President and Manager
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------------
Title: Director
By /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Title: Associate
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By /s/ Xxxxx XxXxxx
----------------------------------------
Title: Senior Vice President
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By /s/ Xxxxxx X. Xxxx
----------------------------------------
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Assistant Vice President
HE ASAHI BANK, LTD.
By /s/ Xxxxxx Xxxx
----------------------------------------
Title: Manager
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
THE SAKURA BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Title: Senior Vice President
THE TOYO TRUST & BANKING
COMPANY, LIMITED
By /s/ T. Mikumo
----------------------------------------
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Managing Director
By /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
BAYERISCHE LANDESBANK
By /s/ Xxxxxxxx Xxxxxxxxxxxxx
----------------------------------------
Title: Executive Vice President and
General Manager
By /s/ Xxxxx Xxxxxxxx
----------------------------------------
Title: Senior Vice President
Manager Lending Division
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Title: Assistant Vice President
By /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------------
Title: Vice President
LLOYDS BANK PLC
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President (G311)
By /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Title: Vice President (B374)
THE NIPPON CREDIT BANK, LTD.
By /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------
Title: Vice President and Manager
THE YASUDA TRUST & BANKING
CO., LIMITED
By /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Title: Chief Representative
BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AG, NEW YORK
BRANCH
By /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
By /s/ Une Xxxxxx
----------------------------------------
Title: Vice President
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President
BHF - BANK AKTIENGESELLSCHAFT
By /s/ Xxxx Xxxxx
----------------------------------------
Title: Assistant Vice President
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Title: Assistant Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ Xxxx Xxxxxx
----------------------------------------
Title: Senior Vice President
Branch Manager
CREDIT LOCAL DE FRANCE
By /s/ Xxxxxxxx Xxxxx
----------------------------------------
Title: Deputy General Manager
By /s/ Xxxx Xxxxx
----------------------------------------
Title: Vice President
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED NEW YORK
BRANCH
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
SUNTRUST BANK, ATLANTA
By /s/ Xxxx X. Xxxxxxx
----------------------------------------
Title: Assistant Vice President
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President
BANCA NAZIONALE DEL LAVORO
SPA - NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Title: First Vice President
By /s/ Xxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
CREDITANSTALT-BANKVEREIN
By /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
By /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title: Vice President
CRESTAR BANK
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Senior Vice President
THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Title: Senior Vice President
Manager, Corporate Finance
XXXXX XXXX BANK CO., LTD.
By /s/ Liang Yuh Xxxxx
----------------------------------------
Title: Senior Vice President and
General Manager
NATIONAL BANK OF KUWAIT SAK
By /s/ Xxxxxxxx Xxxxx
----------------------------------------
Title: Executive Manager
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Executive Manager
STAR BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
PER PRO XXXXX BROTHERS
XXXXXXXX & CO.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Senior Credit Officer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Department
Facsimile number: (000) 000-0000
Telex number: 177615
XXXXXXX XXXXX CAPITAL
CORPORATION, as Documentation
Agent
By /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Facsimile number: 000-000-0000
COMMITMENT SCHEDULE
-------------------
REVOLVING CREDIT TERM LOAN III TERM LOAN II TERM LOAN I
BANK NAME COMMITMENT COMMITMENT COMMITMENT COMMITMENT
--------- ---------------- ------------- ------------ -----------
Xxxxxx Guaranty Trust Company $108,692,307.69 $108,692,307.69 $126,807,692.31 $126,807,692.31
of New York
Xxxxxxx Xxxxx Capital Corporation $108,692,307.69 $108,692,307.69 $126,807,692.31 $126,807,692.31
Bank of Montreal $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Bank of New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Bankers Trust Company $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Canadian Imperial Bank of Commerce $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Credit Lyonnais Atlanta Agency $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Dai-Ichi Kangyo Bank, Ltd., New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Branch
Dresdner Bank AG, New York and Grand $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Cayman Branches
The First National Bank of Chicago $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
First Union National Bank of North Carolina $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Fuji Bank, Ltd. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Industrial Bank of Japan, Limited - New $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
York Branch
LTCB Trust Company $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Mitsubishi Trust and Banking $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Corporation
Royal Bank of Canada $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Sanwa Bank, Limited $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Societe Generale $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Sumitomo Bank, Limited New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Branch
The Tokai Bank, Limited, New York Branch $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Toronto Dominion (New York), Inc. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Union Bank of Switzerland, New York Branch $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
REVOLVING CREDIT TERM LOAN III TERM LOAN II TERM LOAN I
BANK NAME COMMITMENT COMMITMENT COMMITMENT COMMITMENT
--------- ---------------- ------------- ------------ -----------
Wachovia Bank of North Carolina, N.A. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
ABN AMRO Bank N.V., New York Branch $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Banca Commerciale Italiana, New York $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Branch
The Bank of Tokyo-Mitsubishi, Ltd. $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Banque Paribas $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Commerzbank AG, New York Branch $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Compagnie Financiere de CIC et de L'Union $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Europeenne
Cooperatieve Centrale Raiffeisen- $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Boerenleenbank B.A., Rabobank Nederland
Credit Suisse First Boston $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
DG Bank Deutsche Genossenschaftsbank $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Fleet National Bank $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
KeyBank National Association $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Asahi Bank, Ltd. $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Royal Bank of Scotland plc $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Sakura Bank, Limited $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Toyo Trust & Banking Company, Limited $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Westdeutsche Landesbank Girozentrale, New $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
York Branch
Bayerische Landesbank $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Deutsche Bank AG, New York and/or Cayman $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Islands Branch
Lloyds Bank plc $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
The Nippon Credit Bank, Ltd. $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
The Yasuda Trust & Banking Co., Limited $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Bayerische Hypotheken-und Wechsel-Bank $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
AG, New York Branch
2
REVOLVING CREDIT TERM LOAN III TERM LOAN II TERM LOAN I
BANK NAME COMMITMENT COMMITMENT COMMITMENT COMMITMENT
--------- ---------------- ------------- ------------ -----------
Bayerische Vereinsbank AG, New York $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Branch
BHF-Bank Aktiengesellschaft $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Caisse Nationale de Credit Agricole $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Credit Local de France $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
The Mitsui Trust and Banking Company, $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.921
Limited, New York Branch
Suntrust Bank, Atlanta $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Banca Nazionale del Lavoro S.p.A. - New $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
York Branch
Banque Francaise du Commerce Exterieur $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
Creditanstalt-Bankverein $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
Crestar Bank $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
The Sumitomo Trust & Banking Co., Ltd., $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
New York Branch
Xxxxx Xxxx Bank Co., Ltd. $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
National Bank of Kuwait SAK $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
Star Bank, N.A. $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
Per Pro Xxxxx Brothers Xxxxxxxx & Co. $2,307,692.31 $2,307,692.31 $2,692,307.69 $2,692,307.69
3
PRICING SCHEDULE
"Base Rate Margin" means (x) for any day prior to the Acquisition
Date, 0% and (y) for any day on or after the Acquisition Date, the percentage
set forth below in the applicable row under the column corresponding to the
Status that exists on such day; provided that in the event that (i) Level IV
Status or Level V Status exists on such day and (ii) the Loans are rated BB+ or
lower by S&P or Ba1 or lower by Moody's, 0.125% shall be added to the Base Rate
Margin for such day.
"CD Margin" means (x) for any day prior to the Acquisition Date,
0.225% and (y) for any day on or after the Acquisition Date, the percentage set
forth below in the applicable row under the column corresponding to the Status
that exists on such day; provided that in the event that (i) Level IV Status or
Level V Status exists on such day and (ii) the Loans are rated BB+ or lower by
S&P or Ba1 or lower by Moody's, 0.125% shall be added to the CD Margin for such
day.
"Euro-Dollar Margin" means (x) for any day prior to the Acquisition
Date, 0.1% and (y) for any day on or after the Acquisition Date, the percentage
set forth below in the applicable row under the column corresponding to the
Status that exists on such day; provided that in the event that (i) Level IV
Status or Level V Status exists on such day and (ii) the Loans are rated BB+ or
lower by S&P or Ba1 or lower by Moody's, 0.125% shall be added to the
Euro-Dollar Margin for such day.
"Facility Fee Rate" means (x) for any day prior to the Acquisition
Date, 0.25% and (y) for any day on or after the Acquisition Date, the
percentage set forth below in the applicable row under the column corresponding
to the Status that exists on such day.
=========================================================================================================
Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxx I II III IV V
---------------------------------------------------------------------------------------------------------
Base Rate Margin 0.00% 0.00% 0.00% 0.00% 0.250%
---------------------------------------------------------------------------------------------------------
Euro-Dollar 0.225% 0.350% 0.475% 0.750% 0.875%
---------------------------------------------------------------------------------------------------------
Margin
---------------------------------------------------------------------------------------------------------
CD Margin 0.350% 0.475% 0.600% 0.875% 1.00%
---------------------------------------------------------------------------------------------------------
Facility Fee Rate 0.125% 0.150% 0.175% 0.250% 0.375%
=========================================================================================================
For purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB+/Baa1 or higher.
"Level II Status" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB/Baa2.
"Level III Status" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB-/Baa3.
"Level IV Status" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BB+/Ba1.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Moody's" means Xxxxx'x Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Borrower without third-party credit enhancement, and any rating assigned to
any other debt security of the Borrower shall be disregarded provided that
unless and until Moody's and S&P shall have announced new ratings giving effect
to the Acquisition, Level IV Status shall exist. The
2
rating in effect at any date is that in effect at the close of business on such
date. In the event of split ratings from Moody's and S&P, (i) if the ratings
are one full rating category apart, Status shall be determined by the higher of
the two ratings (unless the lower of such two ratings is BB+ (Ba1) or lower, in
which case Status shall be determined by the lower of such two ratings) and
(ii) if the ratings are more than one full rating category apart, Status shall
be determined based on the rating at the midpoint between the two ratings,
provided that if there is no rating at the midpoint between the two ratings,
the higher of the two intermediate ratings (unless the lower of such two
ratings is BB+ (Ba1) or lower, in which case Status shall be determined by the
lower of such two ratings) shall apply (e.g., BBB+/Baa2 results in Level I
Status, BBB+/Baa3, BBB/Baa3 and BBB+/Ba1 all result in Level II Status while
BBB-/Ba1 and BBB/Ba2 result in Level IV Status).
3
