CONFORMED COPY
$150,000,000
CREDIT AGREEMENT
dated as of
April 1, 1997
among
Xxxxxx, Inc.
Xxxxxx International, Inc.
The Banks Listed Herein
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and
Determinations . . . . . . . . . . . 13
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. . . . . . . . . . 14
SECTION 2.02. Method of Borrowing. . . . . . . . . . 14
SECTION 2.03. Notes. . . . . . . . . . . . . . . . . 16
SECTION 2.04. Maturity of Loans. . . . . . . . . . . 16
SECTION 2.05. Interest Rates . . . . . . . . . . . . 16
SECTION 2.06. Facility Fees. . . . . . . . . . . . . 20
SECTION 2.07. Optional Termination or Reduction
of Commitments . . . . . . . . . . . 20
SECTION 2.08. Scheduled Termination of
Commitments. . . . . . . . . . . . . 20
SECTION 2.09. Optional Prepayments . . . . . . . . . 20
SECTION 2.10. General Provisions as to Payments. . . 21
SECTION 2.11. Funding Losses . . . . . . . . . . . . 22
SECTION 2.12. Computation of Interest and Fees . . . 22
SECTION 2.13. Regulation D Compensation. . . . . . . 22
SECTION 2.14. Method of Electing Interest Rates. . . 23
SECTION 2.15. Maximum Interest Rate. . . . . . . . . 25
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. . . . . . . . . . . . . 25
SECTION 3.02. Borrowings . . . . . . . . . . . . . . 27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power. . . . . 27
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. . . 28
SECTION 4.03. Binding Effect . . . . . . . . . . . . 28
SECTION 4.04. Financial Information. . . . . . . . . 28
SECTION 4.05. Litigation . . . . . . . . . . . . . . 29
SECTION 4.06. Compliance with ERISA. . . . . . . . . 29
SECTION 4.07. Environmental Matters. . . . . . . . . 29
SECTION 4.08. Taxes. . . . . . . . . . . . . . . . . 30
SECTION 4.09. Subsidiaries . . . . . . . . . . . . . 30
SECTION 4.10. Not an Investment Company. . . . . . . 30
SECTION 4.11. Full Disclosure. . . . . . . . . . . . 30
ARTICLE V
COVENANTS
SECTION 5.01. Information. . . . . . . . . . . . . . 31
SECTION 5.02. Payment of Obligations . . . . . . . . 33
SECTION 5.03. Maintenance of Property; Insurance . . 34
SECTION 5.04. Conduct of Business and
Maintenance of Existence . . . . . . 34
SECTION 5.05. Compliance with Laws . . . . . . . . . 35
SECTION 5.06. Inspection of Property, Books and
Records. . . . . . . . . . . . . . . 35
SECTION 5.07. Leverage Ratio . . . . . . . . . . . . 35
SECTION 5.08. Negative Pledge . . . . 36
SECTION 5.09. Limitation on Subsidiary Debt. . . . . 37
SECTION 5.10. Fixed Charge Coverage Ratio. . . . . . 37
SECTION 5.11. Consolidations, Mergers and Sales
of Assets. . . . . . . . . . . . . . 37
SECTION 5.12. Use of Proceeds. . . . . . . . . . . . 38
SECTION 5.13. Transactions with Affiliates . . . . . 38
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. . . . . . . . . . . 38
SECTION 6.02. Notice of Default. . . . . . . . . . . 41
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. . . . . 41
SECTION 7.02. Agent and Affiliates . . . . . . . . . 41
SECTION 7.03. Action by Agent. . . . . . . . . . . . 42
SECTION 7.04. Consultation with Experts. . . . . . . 42
SECTION 7.05. Liability of Agent . . . . . . . . . . 42
SECTION 7.06. Indemnification. . . . . . . . . . . . 42
SECTION 7.07. Credit Decision. . . . . . . . . . . . 43
SECTION 7.08. Successor Agent. . . . . . . . . . . . 43
SECTION 7.09. Agent's Fee. . . . . . . . . . . . . . 43
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest
Rate Inadequate or Unfair. . . . . . 44
SECTION 8.02. Illegality . . . . . . . . . . . . . . 44
SECTION 8.03. Increased Cost and Reduced Return. . . 45
SECTION 8.04. Taxes. . . . . . . . . . . . . . . . . 46
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. . . . . . 48
SECTION 8.06. Substitution of Bank.. . . . . . . . . 49
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty . . . . . . . . . . . . . 49
SECTION 9.02. Guaranty Unconditional . . . . . . . . 49
SECTION 9.03. Discharge Only Upon Payment In
Full; Reinstatement In Certain
Circumstances. . . . . . . . . . . . 50
SECTION 9.04. Waiver by the Guarantor. . . . . . . . 51
SECTION 9.05. Subrogation. . . . . . . . . . . . . . 51
SECTION 9.06. Stay of Acceleration . . . . . . . . . 51
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices . . . . . . . . . . . . . . . 51
SECTION 10.02. No Waivers. . . . . . . . . . . . . . 52
SECTION 10.03. Expenses; Indemnification . . . . . . 52
SECTION 10.04. Sharing of Set-Offs . . . . . . . . . 52
SECTION 10.05. Amendments and Waivers. . . . . . . . 53
SECTION 10.06. Successors and Assigns. . . . . . . . 53
SECTION 10.07. Collateral. . . . . . . . . . . . . . 55
SECTION 10.08. Governing Law; Submission to
Jurisdiction . . . . . . . . . . . . 55
SECTION 10.09. Counterparts; Integration . . . . . . 56
PRICING SCHEDULE A
PRICING SCHEDULE B
EXHIBIT A - NOTE
EXHIBIT B - OPINION OF COUNSEL FOR THE
BORROWER AND THE GUARANTOR
EXHIBIT C - OPINION OF XXXXX XXXX & XXXXXXXX
SPECIAL COUNSEL FOR THE AGENT
EXHIBIT D - ASSIGNMENT AND ASSUMPTION AGREEMENT
CREDIT AGREEMENT
AGREEMENT dated as of April 1, 1997 among XXXXXX,
INC., XXXXXX INTERNATIONAL, INC., the BANKS listed on the
signature pages hereof and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Adjusted CD Rate" has the meaning set forth in
Section 2.05(b).
"Affiliate" means any Person (other than a
Subsidiary) directly or indirectly controlling or controlled
by or under direct or indirect common control with the
Guarantor. For the purposes of this definition, "control"
when used with respect to any specified Person means the
power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a
copy to the Borrower) duly completed by such Bank.
"Agent" means Xxxxxx Guaranty Trust Company of New
York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Allowed Sales of Receivables" means sales of
accounts receivable or interests therein permitted under
Section 5.08(g).
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office and (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.05(b).
"Assignee" has the meaning set forth in Section
10.06(c).
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 10.06(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 the Federal Funds Rate for
such day.
"Base Rate Loan" means a Loan which bears interest
at the Base Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election or the
provisions of Section 2.05(a) or Article VIII.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of
the ERISA Group.
"Xxxxxx Family" means Xxxxxx X. Xxxxxx, his direct
descendants and his spouse, taken as a single Person.
"Borrower" means Xxxxxx, Inc., a Delaware
corporation, and its successors.
"Borrower's Form 10-K" means the Borrower's
transition report on Form 10-K for the ten months ended
December 31, 1996, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" means a borrowing hereunder consisting
of Loans made to the Borrower at the same time by the Banks
pursuant to Article II. A Borrowing is a "Domestic
Borrowing" if such Loans are Domestic Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
A Domestic Borrowing is a "CD Borrowing" if such Domestic
Loans are CD Loans or a "Base Rate Borrowing" if such
Domestic Loans are Base Rate Loans.
"CD Base Rate" has the meaning set forth in
Section 2.05(b).
"CD Loan" means a 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 2.05(b) on the basis of an Adjusted CD
Rate.
"CD Reference Banks" means Bank of America
National Trust and Savings Association, NationsBank, N.A.
(South) and Xxxxxx Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Sections 2.07 or 10.06(c) or
increased from time to time pursuant to Section 10.06(c);
and "Commitments" means, as of any date, the aggregate of
all such amounts on such date.
"Consolidated Capital Expenditures" means, for any
period, the additions to property, plant and equipment of
the Guarantor 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 Guarantor and
its Consolidated Subsidiaries for such period.
"Consolidated Debt" means at any date the Debt of
the Guarantor and its Consolidated Subsidiaries, determined
on a consolidated basis as of such date.
"Consolidated EBITDA" means, for any period,
Consolidated Net Income for such period plus, to the extent
deducted in determining Consolidated Net Income for such
period, the aggregate amount of Consolidated Interest
Expense, income tax expense, depreciation, amortization and
other non-cash gains or losses including such gains or
losses from discontinued operations.
"Consolidated Interest Expense" means, for any
period, the interest expense of the Guarantor and its
Consolidated Subsidiaries, determined on a consolidated
basis for such period.
"Consolidated Net Income" means, for any period,
the consolidated net income of the Guarantor and its
Consolidated Subsidiaries during such period, before
extraordinary gains (or losses) and the cumulative effect of
accounting changes during such period.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Guarantor and its
Consolidated Subsidiaries determined as of such date.
"Consolidated Operating Cash Flow" means, for a
period, the sum of (i) Consolidated Net Income for such
period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, depreciation,
amortization and other non-cash gains or losses including
such gains or losses from discontinued operations plus (iii)
to the extent reflected in Consolidated Net Income for such
period, any increase (or minus any decrease) during such
period in deferred income taxes of the Guarantor and its
Consolidated Subsidiaries, taken as a whole.
"Consolidated Rental Expense" means, for any
period, the aggregate rental expense (net of sub-lease
income) of the Guarantor and its Consolidated Subsidiaries,
determined on a consolidated basis for such period.
"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 such Person's consolidated financial statements if
such statements were prepared as of such date; unless
otherwise specified, Consolidated Subsidiary means a
Consolidated Subsidiary of the Guarantor (which may be the
Borrower or a Subsidiary of the Borrower).
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee that are capitalized in
accordance with generally accepted accounting principles,
(v) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such
Person, (vi) all Debt of others Guaranteed by such Person
and (vii) all contingent or non-contingent obligations of
such Person to reimburse any bank or other Person in respect
of amounts paid or payable (currently or in the future, on a
contingent or non-contingent basis) under a letter of credit
or similar instrument; provided that Debt shall not be
deemed to include (A) letters of credit or letters of
guaranty or keepwells on comfort letters with respect to
bids, payment or performance in connection with contracts
for construction or related work entered into in the
ordinary course of business of such Person, (B) contingent
liabilities up to a maximum of $20,000,000 relating to the
specialty steel operations previously owned by the Borrower
or (C) letters of credit and notes payable in an aggregate
amount (without duplication) at any time not to exceed
$30,000,000 with respect to insurance so long as all related
liabilities required by generally accepted accounting
principles to have been accrued by the Guarantor or a
Consolidated Subsidiary have at the time been accrued as
liabilities. Except as provided in Section 5.09, Debt shall
be deemed to include an amount in respect of accounts
receivable or interests therein sold by such Person equal to
the greater of (1) the amount of any recourse obligation on
account of uncollectibility of such accounts receivable or
interests and (2) an amount equal to the unrecovered
purchase price paid by the purchaser of such accounts
receivable or interests.
"Default" means any condition or event that
constitutes an Event of Default or that with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Derivatives Obligations" of any Person means all
payment 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.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City or, with respect to any Borrowing pursuant to
Section 2.02(a)(z), Chicago, Illinois are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to the Borrower and
the Agent; 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.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.05(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions
relating to the environment, the effect of the environment
on human health or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or wastes
into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or
the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Guarantor, the Borrower,
any Subsidiary and all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Guarantor, the Borrower or any Subsidiary, are treated as a
single employer under Section 414(b) or (c) 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 Agent.
"Euro-Dollar Loan" means a 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 2.05(c) on the basis of a
London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal
London offices of Bank of America National Trust and Savings
Association, NationsBank, N.A. (South) and Xxxxxx Guaranty
Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.13.
"Event of Default" has the meaning set forth in
Section 6.01.
"Existing Credit Agreement" means the Credit
Agreement dated as of December 22, 1994 among the Borrower,
the banks parties thereto and Xxxxxx Guaranty Trust Company
of New York, as agent, as amended to the Effective Date.
"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 Agent.
"Fixed Charge Coverage Ratio" means, at any date,
the ratio of (i) the sum of (A) Consolidated EBITDA plus (B)
Consolidated Rental Expense minus (C) Consolidated Capital
Expenditures for the period of four consecutive fiscal
quarters then ended to (ii) the sum of Consolidated Interest
Expense and Consolidated Rental Expense for such period.
"Fixed Rate Borrowing" means a CD Borrowing or a
Euro-Dollar Borrowing.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or both.
"Group of Loans" means, at any time, a group of
Loans consisting of (i) all Loans which are Base Rate Loans
at such time, (ii) all Euro-Dollar Loans having the same
Interest Period at such time or (iii) all 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 VIII, such Loan shall be
included in the same Group or Groups of Loans from time to
time as it would have been in if it had not been so
converted or made.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person and,
without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such
Debt of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has
a corresponding meaning. For purposes of any provision of
this Agreement which requires quantification of an amount of
Debt of the Guarantor and/or one or more of its
Subsidiaries, Debt which is Guaranteed by the Guarantor or
any Subsidiary together with all Guarantees of such Debt by
the Guarantor and its Subsidiaries shall be counted as a
single obligation.
"Guarantor" means Xxxxxx International, Inc., a
Delaware corporation and its successors.
"Guarantor's Form 10-K" means the Guarantor's
transition report on Form 10-K for the ten months ended
December 31, 1996, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Hazardous Substances" means any toxic,
radioactive, caustic or otherwise hazardous substance,
including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section
10.03(b).
"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 an applicable Notice of Interest
Rate Election and ending one, two, three or six months
thereafter (or such other period of time as may at the time
be mutually agreed by the Borrower and the Banks), as the
Borrower may elect in such notice; provided that:
(a) an Interest Period of twelve months may be
elected by the Borrower without the agreement of the
Banks if such election is made in respect of the
Borrower's first Borrowing under this Agreement and if
such first Borrowing occurs not later than May 31,
1997;
(b) any Interest Period that would otherwise end
on a day that 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;
(c) any Interest Period that 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 end on the last Euro-Dollar Business Day
of such calendar month; and
(d) any Interest Period that would otherwise end
after the Termination Date shall end on the Termination
Date.
(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 an applicable Notice
of Interest Rate Election and ending 30, 60, 90 or 180 days
thereafter (or such other period of time as may at the time
be mutually agreed by the Borrower and the Banks), as the
Borrower may elect in such notice; provided that:
(a) any Interest Period that would otherwise end
on a day that is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day; and
(b) any Interest Period that would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"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 Guarantor, the Borrower or
any Subsidiary shall be deemed to own subject to a Lien any
asset that 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 Domestic Loan or a Euro-Dollar Loan
and "Loans" means Domestic Loans or Euro-Dollar Loans or
both; provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of
Interest Rate Election, the term Loan shall refer to the
combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.05(c).
"Material Commitment" means an outstanding
commitment by a financial institution or a syndicate of
financial institutions to provide financial accommodations
to the Guarantor and/or the Borrower and/or one or more
Subsidiaries, arising in one or more related or unrelated
transactions, in an amount exceeding in the aggregate
$5,000,000.
"Material Financial Obligations" means a principal
or face amount of Debt and/or (in the case of Section
6.01(e)) payment obligations in respect of, or (in the case
of Section 6.01(f)) marked-to-market value of, Derivatives
Obligations of the Guarantor and/or the Borrower and/or one
or more Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate
$5,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$5,000,000.
"Material Subsidiary" means any Subsidiary which
is a "significant subsidiary" as defined under Regulation S-
X of the Securities Act of 1933, as amended, as in effect on
the date hereof.
"Moody's" means Xxxxx'x Investor Service, Inc.
"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 but only with respect to the period during
which such Person was a member of the ERISA Group.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Interest Rate Election" has the meaning
set forth in Section 2.14.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in Section
10.06(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 employees of any member of the
ERISA Group or (ii) where Section 4069(a) of ERISA would be
applicable, has at any time within the preceding five years
been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA
Group.
"Pricing Schedule" means (i) Pricing Schedule A
attached hereto, unless and until the Borrower shall have
elected, by not less than five Domestic Business Days'
notice to the Banks, that Pricing Schedule B attached hereto
be the Pricing Schedule and (ii) on and after the effective
date of such notice, Pricing Schedule B attached hereto.
Such election, if made, shall be irrevocable; provided that
if, subsequent to such election, the Borrower's senior
unsecured long-term debt is rated by neither Xxxxx'x nor
S&P, the Borrower may revoke such election; and provided
further that if, subject subsequent to such revocation of
such election, the Borrower's senior unsecured long-term
debt is again rated by Xxxxx'x and/or S&P, the Borrower may
again make the irrevocable election specified in clause (ii)
above.
"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 Payment Dates" means each April 10,
July 10, October 10 and January 10 (or if any such day is
not a Domestic Business Day, the next succeeding Domestic
Business Day).
"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.
"Refunding Borrowing" means a Borrowing that,
after application of the proceeds thereof, results in no net
increase in the outstanding principal amount of Loans made
by any Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from
and including the Effective Date to but not including the
Termination Date.
"S&P" means Standard & Poor's Ratings Services.
"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,
Subsidiary means a Subsidiary of the Guarantor (which may be
the Borrower or a Subsidiary of the Borrower).
"Termination Date" means April 1, 2002 (or if such
date is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day).
"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,
determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (ii) the fair market value of all Plan assets
allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of
ERISA.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock
or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly
owned by the Guarantor.
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 Guarantor's independent public accountants) with
the most recent audited consolidated financial statements of
the Guarantor and its Consolidated Subsidiaries delivered to
the Banks; provided that, if the Borrower notifies the Agent
that the Borrower wishes to amend any covenant in Article V
to eliminate a material variation in the operation of such
covenant by virtue of a change in generally accepted
accounting principles (or if the Agent notifies the Borrower
that the Required Banks wish to amend Article V for such
purpose), then 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
Guarantor, the Borrower and the Required Banks.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the
Revolving Credit Period each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to lend to
the Borrower from time to time amounts not to exceed in the
aggregate at any one time outstanding the amount of its
Commitment. Each Borrowing under this Section shall be in
an aggregate principal amount of $5,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may
be in the aggregate amount of the unused Commitments) and
shall be made from the several Banks ratably in proportion
to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay,
or to the extent permitted by Section 2.09, prepay Loans and
reborrow at any time during the Revolving Credit Period
under this Section.
SECTION 2.02. Method of Borrowing. (a) The
Borrower shall give the Agent notice (a "Notice of
Borrowing") not later than 10:00 A.M. (New York City time)
at least two Domestic Business Days before each CD
Borrowing, (y) at least three Euro-Dollar Business Days
before each Euro-Dollar Borrowing and (z) on the day of each
Base Rate Borrowing, specifying:
(i) 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,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing
are to bear interest initially at the Base Rate, a CD
Rate or a Euro-Dollar Rate, and
(iv) 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.
(b) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such Borrowing
and, except as provided in Section 8.01, such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
Notwithstanding the foregoing, no more than eight Fixed Rate
Borrowings shall be outstanding at any one time, and any
Borrowing that would exceed such limitation shall be made as
a Base Rate Borrowing.
(c) Not later than 1:00 P.M. (New York City time)
on the date of each Borrowing, each Bank shall make
available its share of such Borrowing, in Federal or other
funds immediately available in New York City, to the Agent
at its address referred to in Section 10.01. Unless the
Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the
funds so received from the Banks available to the Borrower
at the Agent's aforesaid address.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsection (c) of this Section
2.02 and the Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have
so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a
rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section
2.05 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute
such Bank's Loan included in such Borrowing for purposes of
this Agreement. Nothing in this subsection (d) shall
relieve any Bank of responsibility for any default in
performance of its obligations hereunder, which may include
responsibility to reimburse the Borrower for incremental
interest costs incurred by it as a consequence of such
default.
SECTION 2.03. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office
in an amount equal to the aggregate unpaid principal amount
of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each
reference in this Agreement to the "Note" of such Bank shall
be deemed to refer to and include any or all of such Notes,
as the context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount and type of
each Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and
may, if such Bank so elects in connection with any transfer
or enforcement of its Note, endorse on the schedule forming
a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes.
Each Bank is hereby irrevocably authorized by the Borrower
so to endorse its Note and to attach to and make a part of
its Note a continuation of any such schedule as and when
required.
SECTION 2.04. Maturity of Loans. Each Loan shall
mature, and the principal amount thereof shall be due and
payable (together with interest accrued thereon), on the
Termination Date.
SECTION 2.05. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable at
maturity, quarterly in arrears on each Quarterly Payment
Date prior to maturity and, with respect to the principal
amount of any Base Rate Loan converted to a CD Loan or a
Euro-Dollar Loan, on the date such amount is so converted.
Any overdue principal of or interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the
rate otherwise applicable to Base Rate Loans for such day.
(b) Each 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 CD Margin for such day plus the
Adjusted CD Rate for such Interest Period; provided that if
any CD Loan shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of
less than 30 days, such CD Loan shall bear interest during
such Interest Period at the rate applicable to Base Rate
Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if
such Interest Period is longer than 90 days, at intervals of
90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the higher of (i) the sum of the CD
Margin for such day plus the Adjusted CD Rate applicable to
such Loan on the day before such payment was due and (ii)
the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
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 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.
"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. Section 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 Euro-Dollar 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, at intervals of
three months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
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) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate per
annum equal to the sum of 2% plus the higher of (i) the sum
of the Euro-Dollar Margin for such day plus the London
Interbank Offered Rate applicable to such Loan on the day
before such payment was due and (ii) the Euro-Dollar Margin
for such day plus the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (x)
the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more
than three Euro-Dollar Business Days, then for such other
period of time not longer than three months as the Agent may
select) deposits in dollars in an amount approximately equal
to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference
Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist,
at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day).
(e) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the Banks of each rate of
interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
(f) Each Reference Bank which is a Bank agrees
and each Bank whose affiliate is a Reference Bank agrees to
cause such affiliate to use its best efforts to furnish
quotations to the Agent as contemplated hereby. If any
Reference Bank does not furnish a timely quotation, the
Agent shall determine the relevant interest rate on the
basis of the quotation or quotations furnished by the
remaining 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 2.06. Facility Fees. (a) The Borrower
shall pay to the Agent for the account of the Banks ratably
a facility fee at the Facility Fee Rate (determined daily in
accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to
but excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on the
daily aggregate amount of the Commitments (whether used or
unused) and (ii) from and including the Termination Date or
such earlier date of termination to but excluding the date
the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
(b) Accrued fees under subsection (a) shall be
payable quarterly in arrears on each Quarterly Payment Date
during the Revolving Credit Period and on the Termination
Date.
SECTION 2.07. Optional Termination or Reduction
of Commitments. During the Revolving Credit Period, the
Borrower may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Commitments at any
time, if no Loans are outstanding at such time or (ii)
ratably reduce from time to time by an aggregate amount of
$5,000,000 or any larger multiple of $1,000,000 thereof, the
aggregate amount of the Commitments in excess of the
aggregate outstanding principal amount of the Loans. If the
Commitments are terminated in their entirety, all accrued
facility fees shall be payable on the effective date of such
termination.
SECTION 2.08. Scheduled Termination of
Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.09. Optional Prepayments. (a) Subject
in the case of Fixed Rate Loans to Section 2.11, the
Borrower may, upon at least one Domestic Business Day's
notice to the Agent prepay any Group of Domestic Loans or
upon at least three Euro-Dollar Business Days' notice to the
Agent, prepay any Group of Euro-Dollar Loans in each case in
whole at any time, or from time to time in part in amounts
aggregating $5,000,000 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 shall be applied to prepay ratably
the Loans of the several Banks included in such Group of
Loans.
(b) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.10. 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 11:00 A.M. (New York City time) on the date when due,
in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
10.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of fees
shall be due on a day that 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 that 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. If the date for any payment of
principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.11. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan or any Fixed Rate Loan is converted to a different
type of Loan (pursuant to Article VI or VIII or otherwise)
on any day other than the last day of an Interest Period
applicable thereto, or the end of an applicable period fixed
pursuant to Section 2.05(d) 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 2.02, 2.09 or 2.15, the Borrower shall reimburse
each Bank within 15 days after demand for any resulting loss
or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion
or failure to borrow, prepay, convert or continue, provided
that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest
error.
SECTION 2.12. 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 facility 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 2.13. 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 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 "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).
SECTION 2.14. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear
interest initially at the type of rate specified by the
Borrower in the applicable Notice of Borrowing. Thereafter,
the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of
Loans (subject to subsection (d) of this Section and the
provisions of Article VIII), 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, subject to
Section 2.11 if any such conversion is effective on any
day other than the last day of an Interest Period
applicable to such Loans; and
(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,
subject to Section 2.11 if any such conversion is
effective on any day other than the last day of an
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a
"Notice of Interest Rate Election") to the 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
(unless the relevant Loans are to be converted from Domestic
Loans of one type to Domestic Loans of the other type or are
CD Loans to be continued as CD Loans for an additional
Interest Period, in which case such notice shall be
delivered to the Agent not later than 10:30 A.M. (New York
City time) on the second Domestic Business Day before such
conversion or continuation 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 at
least $5,000,000 (unless, in either case, such portion is
comprised of Base Rate Loans). If no such notice is timely
received before the end of an Interest Period for any Group
of CD Loans or Euro-Dollar Loans, the Borrower shall be
deemed to have elected that such Group of Loans be converted
to Base Rate Loans at the end of such Interest Period.
(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
resulting from such conversion are to be CD Loans or
Euro-Dollar Loans, the duration of the next succeeding
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans
or Euro-Dollar 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) Promptly after receiving a Notice of
Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Agent shall notify each Bank of
the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
(d) The Borrower shall not be entitled to elect
to convert any Loans to, or continue any Loans for an
additional Interest Period as, CD Loans or Euro-Dollar Loans
if (i) the aggregate principal amounts of any Group of CD
Loans or Euro-Dollar Loans created or continued as a result
of such election would be less than $5,000,000 or (ii) a
Default shall have occurred and be continuing when the
Borrower delivers notice of such election to the Agent.
SECTION 2.15. Maximum Interest Rate. (a)
Nothing contained in this Agreement or the Notes shall
require the Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law.
(b) If the amount of interest payable for the
account of any Bank on any interest payment date in respect
of the immediately preceding interest computation period,
computed pursuant to Section 2.05, would exceed the maximum
amount permitted by applicable law to be charged by such
Bank, the amount of interest payable for its account on such
interest payment date shall be automatically reduced to such
maximum permissible amount.
(c) If the amount of interest payable for the
account of any Bank in respect of any interest computation
period is reduced pursuant to clause (b) of this Section and
the amount of interest payable for its account in respect of
any subsequent interest computation period, computed
pursuant to Section 2.05, would be less than the maximum
amount permitted by applicable law to be charged by such
Bank, then the amount of interest payable for its account in
respect of such subsequent interest computation period shall
be automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate amount
by which interest paid for the account of any Bank has been
increased pursuant to this clause (c) exceed the aggregate
amount by which interest paid for its account has
theretofore been reduced pursuant to clause (b) of this
Section.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement
shall become effective on the date that each of the
following conditions shall have been satisfied (or waived in
accordance with Section 10.05):
(a) receipt by the Agent of 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 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);
(b) receipt by the Agent for the account of each
Bank of a duly executed Note dated on or before the
Effective Date complying with the provisions of Section
2.03;
(c) receipt by the Agent of an opinion of the
Senior Vice President and General Counsel of the
Borrower, substantially in the form of Exhibit B hereto
and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Agent,
substantially in the form of Exhibit C hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(e) receipt by the Agent of evidence satisfactory
to it of the payment of all principal of and interest
on any loans outstanding under, and of all other
amounts payable under, the Existing Credit Agreement;
and
(f) receipt by the Agent of all documents it may
reasonably request relating to the existence of the
Guarantor and the Borrower, the corporate authority for
and the validity of this Agreement and the Notes, and
any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
provided that this Agreement shall not become effective or
be binding on any party hereto unless all of the foregoing
conditions are satisfied not later than April 30, 1997. The
Agent shall promptly notify the Guarantor, the Borrower and
the Banks of the Effective Date, and such notice shall be
conclusive and binding upon all parties hereto. The Banks
that are parties to the Existing Credit Agreement,
comprising the "Required Banks" as defined therein, and the
Borrower agree to waive notice of the termination of the
commitments under such agreement, and that the commitments
thereunder shall terminate in their entirety simultaneously
with and subject to the effectiveness of this Agreement and
that the Borrower shall be obligated to pay on the Effective
Date accrued facility fees under the Existing Credit
Agreement to but excluding the Effective Date.
SECTION 3.02. 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 Agent of a Notice of Borrowing
as required by Section 2.02;
(b) the fact that, immediately after such
Borrowing, the aggregate outstanding principal amount
of the Loans will not exceed the aggregate amount of
the Commitments;
(c) the fact that, immediately before and after
such Borrowing, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and
warranties of the Guarantor and the Borrower contained
in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth
in Sections 4.04(c) and 4.05 as to any matter which has
theretofore been disclosed in writing by the Borrower
to the Banks) shall be true 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)
and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Guarantor and the Borrower jointly and
severally represent and warrant that:
SECTION 4.01. Corporate Existence and Power.
Each of the Guarantor and the Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of Delaware, and has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery
and performance by each of the Guarantor and the Borrower of
this Agreement and the Notes are within its corporate
powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of its certificate of
incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
the Guarantor, the Borrower or any Material Subsidiary or
result in the creation or imposition of any Lien on any
asset of the Guarantor, the Borrower or any Material
Subsidiary.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of each of the
Guarantor and the Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute
a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Guarantor and its Consolidated Subsidiaries as of December
31, 1996 and the related consolidated statements of income,
cash flows and changes in stockholders' equity for the
fiscal period then ended, reported on by Coopers & Xxxxxxx
L.L.P. and set forth in the Guarantor's 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
Guarantor and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows
for such fiscal period.
(b) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December
31, 1996 and the related consolidated statements of income,
cash flows and changes in stockholder's equity for the
fiscal period then ended, reported on by Coopers & Xxxxxxx
L.L.P. and set forth in the Borrower's Form 10-K, a copy of
which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting
principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows
for such fiscal period.
(c) Since December 31, 1996 there has been no
material adverse change in the business, financial position,
results of operations or prospects of the Guarantor and its
Consolidated Subsidiaries, considered as a whole, or in the
business, financial position, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.05. Litigation. Except as disclosed in
the footnotes to the financial statements delivered to each
of the Banks as described in Section 4.04 or as subsequently
delivered pursuant to Section 5.01, there is no action, suit
or proceeding pending against, or to the knowledge of the
Guarantor or the Borrower threatened against or affecting,
the Guarantor, the Borrower or any Subsidiary before any
court or arbitrator or any governmental body, agency or
official in which there is a reasonable likelihood of an
adverse decision that could materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Guarantor and its Consolidated
Subsidiaries, considered as a whole, or the business,
consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner
draws into question the validity of this Agreement or the
Notes.
SECTION 4.06. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any Plan or Benefit Arrangement,
that has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the
ordinary course of their business, the Guarantor and its
Subsidiaries conduct an ongoing review of the effect of
Environmental Laws on their business, operations and
properties in the course of which they identify and evaluate
associated liabilities and costs (including, without
limitation, any capital or operating expenditures required
for clean-up or closure of properties presently or
previously owned, 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 or reduction in the
level of or change in the nature of operations conducted
thereat, any costs or liabilities in connection with off-
site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the
basis of this review, each of the Guarantor and the Borrower
has reasonably concluded that such associated liabilities
and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a material adverse
effect on its creditworthiness.
SECTION 4.08. Taxes. United States Federal
consolidated income tax returns of the Borrower and its
Subsidiaries have been examined and closed through the
fiscal year ended February 28, 1990. The Guarantor, the
Borrower and their 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 Guarantor, the Borrower or any
Subsidiary. The charges, accruals and reserves on the books
of the Guarantor, the Borrower and their Subsidiaries in
respect of taxes or other governmental charges are, in the
opinion of the Guarantor and the Borrower, adequate.
SECTION 4.09. Subsidiaries. Each of the
corporate Material Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
SECTION 4.10. Not an Investment Company. Neither
the Borrower nor the Guarantor is an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Guarantor or the Borrower to the
Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all
such information hereafter furnished by the Guarantor or the
Borrower to the Agent or any Bank will be, true and accurate
in all material respects on the date as of which such
information is stated or certified. The Guarantor and the
Borrower have disclosed to the Banks in writing any and all
facts that materially and adversely affect or may affect (to
the extent the Guarantor or the Borrower can now reasonably
foresee), the business, operations or financial condition of
the Guarantor and its Consolidated Subsidiaries, taken as a
whole, the business, operations or financial condition of
the Borrower and its Consolidated Subsidiaries, taken as a
whole, or the ability of the Guarantor or the Borrower to
perform its obligations under this Agreement.
ARTICLE V
COVENANTS
The Guarantor and the Borrower jointly and
severally agree that, as long as any Bank has any Commitment
hereunder or any amount payable under any Note remains
unpaid:
SECTION 5.01. Information. The Guarantor will
deliver to each of the Banks:
(a) as soon as available and in any event within
95 days after the end of each fiscal year of the
Guarantor, a consolidated balance sheet of the
Guarantor 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 a manner acceptable to the Securities and Exchange
Commission by Coopers & Xxxxxxx L.L.P. or other
independent public accountants of nationally recognized
standing; provided that for the fiscal period ended
December 31, 1996, such financial statements shall
include only the period from March 1, 1996 to December
31 1996;
(b) as soon as available and in any event within
50 days after the end of each of the first three
quarters of each fiscal year of the Guarantor, a
consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as of the end of such quarter
and the related consolidated statement of income for
such quarter and the related consolidated statements of
income and cash flows for the portion of the
Guarantor's fiscal year ended at the end of such
quarter, setting forth in comparative form in the case
of such statements of income and cash flows the figures
for the corresponding quarter and the corresponding
portion of the Guarantor's previous fiscal year, all
certified (subject to normal year-end adjustments) as
to fairness of presentation, generally accepted
accounting principles and, subject to Section 1.02,
consistency by the chief financial officer of the
Guarantor;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, a certificate of the chief financial officer
of the Guarantor (i) setting forth in reasonable detail
the calculations required to establish (x) whether the
Guarantor was in compliance with the requirements of
Sections 5.07 to 5.11, inclusive, on the date of such
financial statements and (y) for so long as Pricing
Schedule A is the Pricing Schedule, the Applicable Cash
Flow Ratio (as such term is defined in Pricing Schedule
A) derived from 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
Guarantor is taking or proposes to take with respect
thereto;
(d) simultaneously with the delivery of each set
of financial statements referred to in clause (a)
above, a statement of the firm of independent public
accountants which reported on such statements whether
anything has come to their attention to cause them to
believe that any Default existed on the date of such
statements;
(e) within five days after any officer of the
Guarantor or 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 Guarantor setting forth the
details thereof and the action which the Guarantor is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Guarantor generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) which the Guarantor or any
Subsidiary shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV
of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such
reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice
that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title
IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA)
in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial
officer or the chief accounting officer of the
Guarantor setting forth details as to such occurrence
and action, if any, which the Guarantor or applicable
member of the ERISA Group is required or proposes to
take; and
(i) from time to time such additional
information regarding the financial position or
business of the Guarantor and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Payment of Obligations. The
Guarantor and the Borrower will pay and discharge, and will
cause each Material Subsidiary to pay and discharge, at or
before maturity, all their respective material obligations
and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good
faith by appropriate proceedings, and will maintain, in
accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
(a) The Guarantor and the Borrower will keep, and will
cause each Material Subsidiary to keep, all property useful
and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Guarantor and the Borrower will maintain
and will cause each of its Subsidiaries to maintain (either
in the name of the Guarantor or the Borrower or in such
Subsidiary's own name) with financially sound and
responsible insurance companies, insurance on all their
respective properties in at least such amounts and against
at least such risks (and with such risk retention) as are
usually insured against by companies of established repute
engaged in the same or a similar business; and will furnish
to the Banks, upon request from the Agent, information
presented in reasonable detail as to the insurance so
carried. The Guarantor and the Borrower will deliver to
the Banks (i) on or before the date of the first Borrowing
hereunder, a certificate dated such date showing the amount
of coverage as of such date, (ii) within five days of
receipt of notice from any insurer a copy of any notice of
cancellation or material change in coverage from that
existing on the date of this Agreement and (iii) forthwith,
notice of any cancellation or nonrenewal of coverage by the
Guarantor or the Borrower, provided that such notice shall
not be required if the Guarantor or the Borrower shall have
obtained replacement coverage with financially sound and
responsible insurance companies and there is no gap in
coverage.
SECTION 5.04. Conduct of Business and Maintenance
of Existence. The Guarantor and the Borrower will
continue, and will cause each Material Subsidiary to
continue, to engage in business of the same general type as
now conducted by the Guarantor, the Borrower and the
Material Subsidiaries, and will preserve, renew and keep in
full force and effect, and will cause each Material
Subsidiary to preserve, renew and keep in full force and
effect their respective corporate existence and their
respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that
nothing in this Section 5.04 shall prohibit (i) the merger
of a Material Subsidiary into the Borrower or the merger or
consolidation of a Material Subsidiary with or into another
Person if the corporation surviving such consolidation or
merger is a Material Subsidiary of the Borrower and if, in
each case, after giving effect thereto, no Default shall
have occurred and be continuing, (ii) the termination of the
corporate existence of any Material Subsidiary or the
disposition, sale or other transfer of the assets or capital
stock of any Material Subsidiary if the Borrower in good
faith determines that such transaction is in the best
interest of the Borrower and is not materially
disadvantageous to the Banks or (iii) the merger of the
Guarantor and the Borrower, provided that the survivor of
such merger, if not the Borrower, shall assume the
Borrower's obligations under this Agreement and the Notes
pursuant to an instrument in form satisfactory to the Agent.
SECTION 5.05. Compliance with Laws. The
Guarantor and the Borrower will comply, and cause each
Material Subsidiary to comply, in all material respects with
all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by
appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and
Records. The Guarantor and the Borrower will keep, and will
cause each Subsidiary to keep, proper books of record and
account in which entries which are full, true and correct in
all material respects shall be made of all dealings and
transactions in relation to its business and activities; and
will permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense to visit
and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times
and as often as may reasonably be desired.
SECTION 5.07. Leverage Ratio. At no time during
any period set forth below will the ratio of (i)
Consolidated Debt to (ii) the sum of Consolidated Debt plus
Consolidated Net Worth exceed the ratio set forth below
opposite such period:
Period Ratio
Effective Date - 12/30/98 .50:1
12/31/98 - 12/30/99 .475:1
12/31/99 - Termination Date .45:1
For purposes of this Section any preferred stock of a
Consolidated Subsidiary held by a Person other than the
Guarantor or a Wholly-Owned Consolidated Subsidiary shall be
included, at the higher of its voluntary or involuntary
liquidation value, in "Consolidated Debt".
SECTION 5.08. Negative Pledge. Neither the
Guarantor nor the Borrower nor any Subsidiary will create,
assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement
in an aggregate principal amount not exceeding
$6,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred
or assumed for the purpose of financing all or any part
of the cost of acquiring such asset, provided that such
Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Guarantor, the Borrower
or a Subsidiary and not created in contemplation of
such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Guarantor, the Borrower or a
Subsidiary and not created in contemplation of such
acquisition;
(f) 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;
(g) Liens arising out of (i) sales of accounts
receivable or interests therein made by the Guarantor
or a Subsidiary or (ii) the incurrence of Debt by the
Guarantor or a Subsidiary secured by accounts
receivable or interests therein; provided that at no
time shall the sum of the aggregate net unrecovered
purchase price paid by purchasers of accounts
receivable or interests therein sold pursuant to clause
(i) plus the aggregate outstanding principal amount of
Debt secured pursuant to clause (ii) exceed
$50,000,000;
(h) Liens incidental to the conduct of its
business or the ownership of its assets which (i) do
not secure Debt or Derivatives Obligations, (ii) do not
secure any obligation in an amount exceeding
$20,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or
materially impair the use thereof in the operation of
its business; and
(i) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate
amount of cash and cash equivalents subject to such
Liens may at no time exceed $5,000,000.
SECTION 5.09. Limitation on Subsidiary Debt.
Neither the Guarantor nor the Borrower will permit any
Subsidiary (other than the Borrower) to become or to be
liable in respect of any Debt, other than (i) Debt of a
corporation existing at the time such corporation becomes a
Subsidiary and not created in contemplation of such event
and (ii) other Debt of Subsidiaries (other than the
Borrower) in an aggregate principal amount at any time
outstanding not exceeding $35,000,000; provided that for
purposes of this Section 5.09, Allowed Sales of Receivables
shall not be deemed to give rise to Debt.
SECTION 5.10. Fixed Charge Coverage Ratio. As of
the last day of each fiscal quarter of the Guarantor the
Fixed Charge Coverage Ratio will not be less than 4.0 to 1.
SECTION 5.11. Consolidations, Mergers and Sales
of Assets. Except as provided in Section 5.04 above,
neither the Guarantor nor the Borrower will (i) consolidate
or merge with or into any other Person or (ii) sell, lease
or otherwise transfer, directly or indirectly, all or any
substantial part of the assets of the Guarantor and its
subsidiaries, taken as a whole, or the assets of the
Borrower and its Subsidiaries, taken as a whole, to any
other Person; provided that this clause (ii) shall not apply
to Allowed Sales of Receivables.
SECTION 5.12. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for its general corporate purposes. None of such
proceeds will be used in violation of Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System.
SECTION 5.13. Transactions with Affiliates. The
Guarantor will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by
acquisition of stock or indebtedness, by loan, advance,
transfer of property, guarantee or other agreement to pay,
purchase or service, directly or indirectly, any Debt, or
otherwise) 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
arms-length basis on terms no less favorable to the
Guarantor or such Subsidiary than could have been obtained
from a third party who was not an Affiliate; provided that
this Section will not apply to the compensation of officers
and directors in the ordinary course of business.
ARTICLE VI
DEFAULTS
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 fail to pay when due any
principal of any Loan, or shall fail to pay within
three Domestic Business Days following the due date
thereof any interest on any Loan or any fees or any
other amount payable hereunder;
(b) the Guarantor or the Borrower shall fail to
observe or perform any covenant contained in Sections
5.07 to 5.13, inclusive;
(c) the Guarantor or the Borrower shall fail to
observe or perform any covenant or agreement contained
in this Agreement (other than those covered by clause
(a) or (b) above) for 15 Domestic Business Days after
written notice thereof has been given to the Borrower
by the Agent at the request of any Bank;
(d) any representation, warranty, certification
or statement made by the Guarantor or the Borrower in
this Agreement or in any certificate, financial
statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) the Guarantor, the Borrower or any Subsidiary
shall fail to make any payment in respect of any
Material Financial Obligation when due or, if later,
within any applicable grace period;
(f) (i) any event or condition shall occur which
results in the acceleration of the maturity, or
requires the early redemption or prepayment, of any
Material Financial Obligation or any event or condition
shall occur which enables (or, which the giving of
notice or lapse of time or both, would enable) the
holder of any Material Financial Obligation or any
Person acting on such holder's behalf to accelerate the
maturity, or require the early redemption or
prepayment, of such Material Financial Obligation or
(ii) any event or condition constituting a default or
event of default under the agreement, instrument or
other document relating thereto shall occur which
results in the termination of any Material Commitment
or any such event or condition shall occur and be
continuing which enables (or with the giving of notice
or lapse of time or both, would enable) the provider of
any Material Commitment or any Person acting on such
provider's behalf to require the early termination of
such Material Commitment (it is understood that a
mandatory prepayment of industrial revenue bonds by
reason of the fact that the Borrower did not expend the
full amount of proceeds thereof for permitted purposes
does not give rise to an Event of Default under this
clause (f));
(g) the Guarantor, the Borrower or any Material
Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such
official in an involuntary case or other proceeding
commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall
be commenced against the Guarantor, the Borrower or any
Material Subsidiary seeking liquidation, reorganization
or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered
against the Guarantor, the Borrower or any Material
Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess
of $5,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(j) a judgment or order against the Guarantor,
the Borrower or any Subsidiary for the payment of money
in excess of $5,000,000 shall be rendered and such
judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) the Xxxxxx Family shall at any time cease to
be the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of capital stock
of the Guarantor having the right to elect at least a
majority of the directors of the Guarantor; or the
Guarantor shall cease to own, directly or indirectly,
all capital stock of the Borrower having ordinary
voting power for the election of directors of the
Borrower;
then, and in every such event, the Agent shall (i) if
requested by Banks having more than 50% in aggregate amount
of the Commitments, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the
Borrower declare the Notes (together with accrued interest
thereon) to be, and the Notes 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 Guarantor and the Borrower; provided that in
the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Guarantor or the
Borrower, without any notice to the Guarantor or the
Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes
(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 Guarantor and the Borrower.
SECTION 6.02. Notice of Default. The 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 VII
THE AGENT
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Xxxxxx
Guaranty Trust Company of New York shall have the same
rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though
it were not the Agent, and Xxxxxx Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with
the Guarantor, the Borrower or any Subsidiary or affiliate
of the Guarantor or the Borrower as if it were not the Agent
hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the
Guarantor or Borrower; (iii) the satisfaction of any
condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or
any other instrument or writing furnished in connection
herewith. The Agent shall not incur any liability by acting
in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed
by it to be genuine or to be signed by the proper party or
parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks,
the Guarantor and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a
successor Agent with (and subject to) the Borrower's
approval. If no successor Agent shall have been so
appointed, and shall have accepted such appointment, within
30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having
a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After
any retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Borrower shall
pay to the Agent for its own account fees in the amounts and
at the times previously agreed upon between the Borrower and
the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
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 CD Loan or Euro-Dollar Loan:
(a) the 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) Banks holding 50% or more of the aggregate
amount of the affected Loans advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate,
as the case may be, as determined by the 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 Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Banks
to make 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
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, such Borrowing shall instead be made as a Base Rate
Borrowing.
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 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
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans or to
continue or convert outstanding Loans as or into Euro-Dollar
Loans, shall be suspended. Before giving any notice to the
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 as
a Euro-Dollar Loan to such day or (b) immediately if such
Bank shall determine that it may not lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such
day.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after the date hereof the adoption of any
applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System, but
excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage 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 2.13), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Note 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 or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after
the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution
methods.
SECTION 8.04. Taxes. (a) For 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 Agent, taxes imposed on its income, and franchise or
similar taxes imposed on it, by a jurisdiction under the
laws of which such Bank or the Agent (as the case may be) is
organized or in which its principal executive office is
located or, in the case of each Bank, in which its
Applicable Lending Office is located and (ii) in the case of
each Bank, any United States withholding tax imposed on such
payments but only to the extent that such Bank is subject to
United States withholding tax at the time such Bank first
becomes a party to this Agreement.
"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 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 8.04) such Bank or the Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower
shall make such deductions, (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 Agent, at its address
referred to in Section 10.01, the original or a certified
copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank
and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as
the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days
after such Bank or the Agent (as the case may be) makes
demand therefor.
(d) Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the
case of each other Bank, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the
United States is a party which exempts 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.
(e) For any period with respect to which a Bank
has failed to provide the Borrower with the appropriate form
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 originally was required to be
provided), such Bank shall not be entitled to
indemnification under Section 8.04(b) or (c) with respect to
Taxes imposed by the United States; provided that if a Bank,
which is otherwise exempt from or subject to a reduced rate
of withholding tax, becomes subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower
shall take such steps as such Bank shall reasonably request
to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 8.04, then such Bank will change the jurisdiction of
its Applicable Lending Office if, in the judgment of such
Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is
not otherwise disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its CD Loans or
Euro Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through
the Agent, have elected that the provisions of this Section
shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist,
all Loans which would otherwise be made by such Bank as (or
continued as or converted to) 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). If such Bank notifies such Borrower that the
circumstances giving rise to such suspension or demand for
compensation no longer exist, 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 (i) the
obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04, the
Borrower shall have the right, with the assistance of the
Agent, to seek a mutually satisfactory substitute bank or
banks (which may be one or more of the Banks) to purchase
the Note and assume the Commitments of such Bank.
ARTICLE IX
GUARANTY
SECTION 9.01. The Guaranty. The Guarantor hereby
unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise)
of the principal of and interest on each Note issued by the
Borrower pursuant to this Agreement, and the full and
punctual payment of all other amounts payable by the
Borrower under this Agreement. Upon failure by the Borrower
to pay punctually any such amount, the Guarantor shall
forthwith on demand pay the amount not so paid at the place
and in the manner specified in this Agreement.
SECTION 9.02. Guaranty Unconditional. The
obligations of the Guarantor hereunder shall be
unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(i) any extension, renewal, settlement,
compromise, waiver or release in respect of any
obligation of the Borrower under this Agreement or any
Note, by operation of law or otherwise;
(ii) any modification or amendment of or
supplement to this Agreement or any Note;
(iii) any release, impairment, non-perfection or
invalidity of any direct or indirect security for any
obligation of the Borrower under this Agreement or any
Note;
(iv) any change in the corporate existence,
structure or ownership of the Borrower, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or its assets or any
resulting release or discharge of any obligation of the
Borrower contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other
rights which the Guarantor may have at any time against
the Borrower, the Agent, any Bank or any other Person,
whether in connection herewith or any unrelated
transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating
to or against the Borrower for any reason of this
Agreement or any Note, or any provision of applicable
law or regulation purporting to prohibit the payment by
the Borrower of the principal of or interest on any
Note or any other amount payable by it under this
Agreement; or
(vii) any other act or omission to act or delay of
any kind by the Borrower, the Agent, any Bank or any
other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense
to the Guarantor's obligations hereunder.
SECTION 9.03. Discharge Only Upon Payment In
Full; Reinstatement In Certain Circumstances. The
Guarantor's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and
the principal of and interest on the Notes and all other
amounts payable by the Borrower under this Agreement shall
have been paid in full. If at any time any payment of
principal of or interest on any Note or any other amount
payable by the Borrower under this Agreement is rescinded or
must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise,
the Guarantor's obligations hereunder with respect to such
payment shall be reinstated at such time as though such
payment had been due but not made at such time.
SECTION 9.04. Waiver by the Guarantor. The
Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken
by any Person against the Borrower or any other Person.
SECTION 9.05. Subrogation. Upon making any
payment with respect to the Borrower hereunder, the
Guarantor shall be subrogated to the rights of the payee
against the Borrower with respect to such payment; provided
that the Guarantor shall not enforce any payment by way of
subrogation until all amounts of principal of and interest
on the Notes and all other amounts payable by the Borrower
under this Agreement have been paid in full.
SECTION 9.06. Stay of Acceleration. In the event
that acceleration of the time for payment of any amount
payable by the Borrower under this Agreement or its Notes is
stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be
payable by the Guarantor hereunder forthwith on demand by
the Agent made at the request of the Required Banks.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests
and other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x)
in the case of the Guarantor, the Borrower or the Agent, at
its address or telex number or facsimile number set forth on
the signature pages hereof, (y) in the case of any Bank, at
its address or telex number or facsimile number set forth in
its Administrative Questionnaire or (z) in the case of any
party, such other address or telex number or facsimile
number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower. Each such notice,
request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by
any other means, when delivered at the address specified in
this Section; provided that notices to the Agent under
Article II or Article VIII shall not be effective until
received.
SECTION 10.02. No Waivers. No failure or delay
by the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a)
The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default
or alleged Default hereunder and (ii) if an Event of Default
occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Agent
and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or
judicial proceeding (whether or not such Indemnitee shall be
designated a party thereto) brought or threatened relating
to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that
no Indemnitee shall have the right to be indemnified
hereunder for (i) such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent
jurisdiction or (ii) cost and expenses associated with any
suit between the Borrower and such Indemnitee to the extent
the Borrower prevails on the merits therein.
SECTION 10.04. 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 Note held by 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 Note held by such other Bank, the Bank
receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest
with respect to the Notes held by the Banks shall be shared
by the Banks pro rata; provided that nothing in this Section
shall impair the right, if any, of any Bank to exercise any
right of set-off or counterclaim it may have and to apply
the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness
under the Notes. The Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights
of set-off or counterclaim and other rights with respect to
such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 10.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
waived if, but only if, such amendment or waiver is in
writing and is signed by the Guarantor, the Borrower and the
Required Banks (and, if the rights or duties of the Agent
are affected thereby, by the Agent); provided that no such
amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except
for a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce
the principal of or rate of interest on any Loan or 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 termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any
action under this Section or any other provision of this
Agreement.
SECTION 10.06. 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, except as
contemplated by Section 5.04, the Borrower may not assign or
otherwise transfer any of its rights under this Agreement
without 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 its Commitment or any or all of
its 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 Agent, such Bank shall remain
responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii), (iii) or (iv) of
Section 10.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or a proportionate part (equivalent to a Commitment of not
less than $5,000,000) of all, of its rights and obligations
under this Agreement and the Notes, and such Assignee shall
assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the
form of Exhibit D hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed
consent of the Borrower, which shall not be unreasonably
withheld, and the Agent; provided that if an Assignee is an
affiliate of such transferor Bank or was a Bank immediately
prior to such assignment, no such consent shall be required.
Upon execution and delivery of such instrument and payment
by such Assignee to such transferor Bank of an amount equal
to the purchase price agreed between such transferor Bank
and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such instrument
of assumption, and the transferor Bank shall be released
from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant
to this subsection (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is
not incorporated under the laws of the United States 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 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 and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02, 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 10.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.08. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the
State of New York. Each of the Guarantor, the Borrower and
the Banks 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. Each of the Guarantor, the Borrower
and the Banks 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.
SECTION 10.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
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.
XXXXXX, INC.
By /s/ Xxxxxx X. Xxxxxx
Title: Exec. Vice President & CFO
0000 Xxxxxxxxx Xxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telex number: 8107283252
Facsimile number: 000-000-0000
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxxx
Title: Exec. Vice President
0000 Xxxxxxxxx Xxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telex number: 8107283252
Facsimile number: 000-000-0000
Commitments
$32,500,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxx X. Xxxxxxx
Title: Vice President
$32,500,000 ABN AMRO BANK N.V., ATLANTA AGENCY
By /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxxx
Title: Group Vice President
$32,500,000 BANK OF AMERICA ILLINOIS
By /s/ Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
$32,500,000 NATIONSBANK, N.A. (SOUTH)
By /s/ Xxxxxxx X. Xxxx
Title: Vice President
$20,000,000 SOUTHTRUST BANK OF ALABAMA, N.A.
By /s/ Xxxxx Xxxxxx
Title: Vice President
_________________
Total Commitments
$150,000,000
===========
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxx X. Xxxxxxx
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telex number: 177615
PRICING SCHEDULE A
The "Euro-Dollar Margin," "CD Margin," and "Facility
Fee Rate" for (i) any day during the Quarter in which the
Effective Date falls are the respective percentages set forth
below in the applicable row under the column corresponding to
Level II Status and (ii) any day during any Quarter thereafter
are the respective percentages set forth below in the
applicable row under the column corresponding to the Status
that exists on such day:
Xxxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV V VI
Facility .1250% .1500% .1500% .2000% .2750% .3750%
Fee Rate
Eurodollar
Margin .1750% .2000% .3000% .4000% .6000% .8750%
CD Margin .3000% .3250% .4250% .5250% .7250% 1.0000%
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Status" exists at any date if the
Applicable Cash Flow Ratio is greater than 1.00.
"Level II Status" exists at any date if (i) the
Applicable Cash Flow Ratio is greater than 0.50 and (ii) Level
I Status does not exist.
"Level III Status" exists at any date if (i) the
Applicable Cash Flow Ratio is greater than 0.40 and (ii)
neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if (i) the
Applicable Cash Flow Ratio is greater than 0.30 and (ii)
neither Level I Status, Level II Status nor Level III Status
exists.
"Level V Status" exists at any date if (i) the
Applicable Cash Flow Ratio is greater than 0.25 and (ii)
neither Level I Status, Level II Status, Level III Status nor
Level IV Status exists.
"Level VI Status" exists at any date if the
Applicable Cash Flow Ratio is less than or equal to 0.25.
"Applicable Cash Flow Ratio" means, with respect to
each day during any Fee Quarter, the ratio of Consolidated
Operating Cash Flow for the period of four consecutive
Calendar Quarters most recently ended prior to such Fee
Quarter to Consolidated Debt as at the last day of such period
of four consecutive Calendar Quarters.
"Calendar Quarter" means each period of three
consecutive calendar months consisting of (i) January,
February and March; (ii) April, May and June; (iii) July,
August and September and (iv) October, November and December.
"Fee Quarter" means each period from and including a
Quarterly Payment Date to but not including the next
succeeding Quarterly Payment Date; provided that the first
such period shall commence on the Effective Date.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status, Level IV
Status, Level V Status or Level VI Status exists at any date.
The Applicable Cash Flow Ratio for each Fee Quarter shall be
determined initially on the basis of an estimate which shall
be furnished by the Guarantor to the Agent not later than the
earlier of (i) the 60th day of such Fee Quarter and (ii) the
tenth day prior to the first day (if any) during such Fee
Quarter on which interest is payable in respect of Euro-Dollar
Loans or CD Loans. If when finally determined the actual
Applicable Cash Flow Ratio differs from the estimate,
appropriate adjustments shall be made as determined by the
Agent.
PRICING SCHEDULE B
The "Euro-Dollar Margin," "CD Margin," and "Facility
Fee Rate" for any day are the respective percentages set forth
below in the applicable row under the column corresponding to
the Status that exists on such day:
Xxxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV V VI
Facility
Fee Rate .1000% .1250% .1500% .2250% .3000% .3750%
Euro-Dollar
Margin .2000% .2250% .3000% .4625% .5750% .8750%
CD Margin .3250% .3500% .4250% .5875% .7000% 1.0000%
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Status" exists at any date if, at such
date, the senior unsecured long-term debt of the Guarantor or
the Borrower is rated BBB+/Baa1 or higher.
"Level II Status" exists at any date if, at such
date, the senior unsecured long-term debt of the Guarantor or
the Borrower is rated BBB/Baa2.
"Level III Status" exists at any date if, at such
date, the senior unsecured long-term debt of the Guarantor or
the Borrower is rated BBB-/Baa3.
"Level IV Status" exists at any date if, at such
date, the senior unsecured long-term debt of the Guarantor or
the Borrower is rated BB+/Ba1.
"Level V Status" exists at any date if, at such
date, the senior unsecured long-term debt of the Guarantor or
the Borrower is rated BB/Ba2.
"Level VI Status" exists at any date if, at such
date, (i) the senior unsecured long-term debt of the Guarantor
or the Borrower is rated below BB by S&P or below Ba2 by
Xxxxx'x or (ii) neither S&P nor Xxxxx'x has an effective
rating of the senior unsecured long-term debt of the Guarantor
or the Borrower.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status, Level IV,
Status, Level V Status or Level VI Status exists at any date.
The credit ratings to be utilized for purposes of this
Schedule are those assigned by S&P or Xxxxx'x to the senior
unsecured long-term debt of the Guarantor and the Borrower
without third-party credit enhancement, specifically the
Corporate Credit Rating for S&P and the Implied Senior Rating
for Xxxxx'x, and any rating assigned to any other debt of the
Guarantor or the Borrower shall be disregarded. The rating in
effect at any date is that in effect at the close of business
on such date. In the case of split ratings from S&P and
Xxxxx'x, the rating to be used to determine Status is the
higher of the two, provided that (i) in the event the split is
more than one full category, the average (or the higher of two
median ratings) shall be used (e.g., BBB+/Baa3 results in
Level II Status, as does BBB+/Ba1) and (ii) the lower rating
applies for purposes of determining Level VI Status.
EXHIBIT A
NOTE
New York, New York
April 1, 1997
For value received, Xxxxxx, Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred
to below on the maturity date provided for in the Credit
Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All
such payments of principal and interest shall be made in
lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty
Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types
thereof and all repayments of the principal thereof shall be
recorded by the Bank and, if the Bank so elects in connection
with any enforcement or transfer hereof, appropriate notations
to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the
schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of April 1, 1997 among the Borrower,
the banks listed on the signature pages thereof and Xxxxxx
Guaranty Trust Company of New York, as Agent (as the same may
be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of
the maturity hereof.
XXXXXX, INC.
By________________________
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________
Amount of
Amount of Type of Principal Notation
Date Loan Loan Repaid Made By
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER AND THE GUARANTOR
[Effective Date]
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
I am the Senior Vice President and General Counsel
of Xxxxxx, Inc. (the "Borrower") and I have acted as counsel
for the Borrower and Xxxxxx International, Inc. (the
"Guarantor") in connection with the Credit Agreement (the
"Credit Agreement") dated as of April 1, 1997 among the
Borrower, the Guarantor, the banks listed on the signature
pages thereof and Xxxxxx Guaranty Trust Company of New York,
as Agent. Terms defined in the Credit Agreement are used
herein as therein defined. This opinion is being rendered
to you at the request of my clients pursuant to Section
3.01(c) of the Credit Agreement.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as I have deemed necessary
for purposes of this opinion.
With respect to my opinion in paragraph (5) below,
I have assumed that any action, suit or proceeding which
could result in an adverse financial impact to the
Guarantor, the Borrower or any Subsidiary of less than One
Million Dollars would not materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Guarantor and its Subsidiary or
the Borrower and its Subsidiaries.
My opinion in paragraph (6) below with respect to
the Material Subsidiaries of the Guarantor or the Borrower
that are incorporated in states of the United States of
America is based solely on certificates of public officials
pertaining thereto, and such opinion with respect to the
Subsidiaries that are incorporated in Belgium, Brazil and
Canada is based solely on the verbal opinions of local
counsel.
Upon the basis of the foregoing, I am of the
opinion that:
1. Each of the Guarantor and the Borrower is a
corporation duly incorporated, validly existing and in good
standing under the laws of Delaware, and has all corporate
powers required to carry on its business as now conducted.
2. The execution, delivery and performance by
each of the Guarantor and the Borrower of the Credit
Agreement and by the Borrower of the Notes are within its
corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any
provision of applicable law or regulation or of its
certificate of incorporation or by-laws, or of any
agreement, judgment, injunction, order, decree or other
instrument known to me to which the Guarantor or the
Borrower is a party or otherwise bound or result in the
creation or imposition of any direct Lien on any asset of
the Guarantor or the Borrower or any Material Subsidiary
under any of the foregoing.
3. The Credit Agreement constitutes a valid and
binding agreement of each of the Guarantor and the Borrower
and the Notes constitute valid and binding obligations of
the Borrower, in each case enforceable in accordance with
their terms, except as such obligations may be (a) limited
by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditor's rights generally or
(b) subject to general principles of equity (whether
considered in a proceeding in equity or at law).
4. Neither the Agent nor any of the Banks is
required to be qualified to do business or file any
designation for service of process or file any reports in
the State of Alabama, or comply with any statutory or
regulatory rule or requirement applicable only to financial
institutions chartered or qualified to do business in the
State of Alabama, solely by reason of its execution and
delivery of the Credit Agreement or by reason of its
participation in any of the transactions under or
contemplated by the Credit Agreement, including, without
limitation, the making of any loan contemplated thereby and
the making and receipt of payments to be made by the
Guarantor or Borrower pursuant to the Credit Agreement, and
the validity and enforceability of the Credit Agreement will
not be affected by the failure to so qualify or file.
5. Except as disclosed in the footnotes to the
financial statements delivered to each of the Banks as
described in Section 4.04 of the Credit Agreement, there is
not to my knowledge after due inquiry, any action, suit or
proceeding pending against or affecting the Guarantor, the
Borrower or any Subsidiary before any court or arbitrator or
any governmental body, agency or official, or to the best of
my knowledge threatened, in which there is a reasonable
likelihood of an adverse decision that could materially
adversely affect the business, consolidated financial
position or consolidated results of operations of the
Guarantor and its Subsidiaries considered as a whole or the
Borrower and its Subsidiaries, considered as a whole, or
which challenges the validity of the Credit Agreement or the
Notes.
6. Each of the Material Subsidiaries that is
incorporated in states of the United States of America and
each of the Borrower's Subsidiaries incorporated in Belgium,
Brazil or Canada, is a corporation validly existing and in
good standing under the laws of its jurisdiction of
incorporation.
7. With respect to the choice of law provisions
of the Notes and of Section 10.08 of the Credit Agreement,
an Alabama court should conclude that the laws of the State
of New York would govern the rights and duties of the
parties thereto.
This opinion is limited in all respects to the
laws of the State of Alabama, the federal laws of the United
States of America and the General Corporation Law of the
State of Delaware, and no opinion is hereby expressed with
respect to any matters which may arise under laws of any
other jurisdiction or any effect which such laws might have
on the opinions herein set forth. This opinion is furnished
by me for your sole benefit and no other person or entity
shall be entitled to rely on this opinion without my express
prior written consent in each instance. This opinion is
limited to the matters expressly stated herein as of the
date hereof, and no other opinions are implied or may be
inferred.
Very truly yours,
EXHIBIT C
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENT
[Effective Date]
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of April
1, 1997 among Xxxxxx, Inc., a Delaware corporation (the
"Borrower"), Xxxxxx International, Inc., a Delaware
corporation (the "Guarantor") the banks listed on the
signature pages thereof (the "Banks") and Xxxxxx Guaranty
Trust Company of New York, as Agent (the "Agent"), and have
acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(d) of the
Credit Agreement. Terms defined in the Credit Agreement are
used herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by
each of the Guarantor and the Borrower of the Credit
Agreement and the Notes are within the its corporate powers
and have been duly authorized by all necessary corporate
action.
2. The Credit Agreement constitutes a valid and
binding agreement of each of the Guarantor and the Borrower
and each Note constitutes a valid and binding obligation of
the Borrower, in each case enforceable in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person without our prior written consent.
Very truly yours,
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
XXXXXX, INC. (the "Borrower") and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement dated as
of April 1, 1997 among the Borrower, Xxxxxx International,
Inc., the Assignor and the other Banks party thereto, as
Banks, and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Loans to the Borrower
in an aggregate principal amount at any time outstanding not
to exceed $__________;
WHEREAS, Loans made to the Borrower by the
Assignor under the Credit Agreement in the aggregate
principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its
outstanding Loans, and the Assignee proposes to accept
assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings
set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the
principal amount of the Loans made by the Assignor
outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower
and the Agent and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under
the Credit Agreement with a Commitment in an amount equal to
the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount
and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein
shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds an amount equal to $_________. It is
understood that commitment and/or facility fees accrued to
the date hereof are for the account of the Assignor and such
fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other
party hereto, it shall receive the same for the account of
such other party to the extent of such other party's
interest therein and shall promptly pay the same to such
other party.
[SECTION 4. Consent of the Borrower and the
Agent. This Agreement is conditioned upon the consent of
the Borrower and the Agent pursuant to Section 10.06(c) of
the Credit Agreement. The execution of this Agreement by
the Borrower and the Agent is evidence of this consent.
Pursuant to Section 10.06(c) the Borrower agrees to execute
and deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Guarantor and the Borrower in respect of
the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance
on the Assignor, and based on such documents and information
as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement and will continue
to be responsible for making its own independent appraisal
of the business, affairs and financial condition of the
Guarantor and the Borrower.
SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
XXXXXX, INC.
By_________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:
