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Exhibit (b)(2)
FIVE-YEAR REVOLVING CREDIT AGREEMENT
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This Agreement is made and entered into this 31st day of August, 1995
by and among The Xxxxxxx-Xxxxxxxx Company ("Company") whose principal place
of business is located at 000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx, Xxxx
00000, Bank of America National Trust and Savings Association, as
Administrative Agent, and the financial institutions listed on Schedule A
hereto together with each of their successors and assigns (collectively
referred to as "Banks" and individually a "Bank").
W I T N E S S E T H:
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WHEREAS, the Company has requested the Banks to make certain
unsecured Loans to the Company for general corporate purposes including,
but not limited to, capital expenditures, general working capital,
acquisitions of assets, stock or other ownership interests and repurchases
or redemptions of securities; and
WHEREAS, the Banks have agreed to make such Loans on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADMINISTRATIVE AGENT" shall mean Bank of America National Trust and Savings
Association or any successor Bank appointed by the Company and
approved by the holders of fifty-one percent (51%) by amount of the
Commitments.
"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of
interest in effect for any given day as publicly announced from
time to time by the Administrative Agent as its "reference rate" and
(ii) the Federal Funds Rate plus 50 basis points. Any change by the
Administrative Agent of its "reference rate" shall take effect at the
opening of business on the day specified in the public announcement of
such change.
"ALTERNATE BASE RATE LOAN" shall mean those Loans bearing interest at the
Alternate Base Rate.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which
California and New York banks are open for the transaction of business.
"COMMITMENT" shall mean the obligation of each Bank to make loans, under
Section 2.1A or 2.1C of this Agreement, up to the amount set opposite
the name of such Bank as set forth on such Bank's signature page
hereto (or such lesser amount as shall be determined pursuant to
Section 2.5 hereof).
"COMMITMENT PERIOD" shall mean the period which commences on the Effective
Date and terminates on the Termination Date.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of the Company and its Consolidated Subsidiaries over all of
their liabilities (other than Subordinated Indebtedness), as
determined on a consolidated basis in accordance with
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generally accepted accounting principles as applied by the
Company in the calculation of such amount in the Company's then most
recent financial statements furnished to its stockholders, plus the
aggregate value of all treasury stock purchased after the Effective
Date (at cost) by the Company (to the extent that the aggregate value
of such treasury stock for purposes of this calculation does not exceed
Two Hundred Fifty Million Dollars ($250,000,000)). The calculation of
Consolidated Net Worth shall exclude any amounts which would otherwise
be required to be included therein as a result of the future adoption
by the Financial Accounting Standards Board of any policy, statement,
rule or regulation requiring the Company to record an accumulative
liability on its Financial Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every
Subsidiary which is consolidated in the Company's financial statements
contained in its then most recent Financial Report.
"DEBT" shall mean, collectively, all indebtedness at any one time
outstanding hereunder and owed by the Company to the Banks pursuant to
this Agreement and includes the principal of and interest on all Notes
and each conversion, extension, renewal or refinancing thereof in
whole or in part, the Facility Fees and any prepayment premium due under
Section 2.1A(x).
"DOLLARS" or "$" shall mean any lawful currency of the United States of
America.
"EUROCURRENCY" shall mean any freely transferable and convertible currency
on deposit outside the country of issuance.
"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"EFFECTIVE DATE" shall mean August 31, 1995.
"FACILITY FEE" shall mean the sum to be paid by the Company to the
Administrative Agent on behalf of each Bank on the last Banking Day of
each calendar quarter during the Commitment Period calculated as the
product of each Bank's Commitment and the number of basis points set
forth in the following table for the highest of the then current
ratings assigned to the Company's senior unsecured long-term debt by
Xxxxx'x, S&P or Duff & Xxxxxx on such date which is one (1) business
day prior to the date(s) payment of such fee shall be due:
XXXXX'X, S&P OR DUFF & XXXXXX BASIS POINTS
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AA-, Aa3 or higher 7.0
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A-, A3 9.0
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BBB, Baa2 12.0
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Lower than BBB or Baa2 15.0
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Banking
Day
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opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Banking Day, the rate for such day shall be the arithmetic mean,
as determined by the Administrative Agent, of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York time) on such day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as
otherwise indicated, filed by the Company with the Securities and
Exchange Commission (or any governmental body or agency succeeding to
the functions of such Commission) on Form 10-K or 10-Q pursuant to the
Securities Exchange Act of 1934 ("Exchange Act"), as then in effect
(or any comparable forms under similar Federal statutes then in
force), and the most recent financial statements furnished by the
Company to its stockholders (which annual financial statement shall be
certified by the Company's independent certified public accountants).
"INTEREST ADJUSTMENT DATE" shall mean the last day of each LIBOR Interest
Period.
"LIBOR" shall mean the average (rounded upward to the nearest 1/16 of 1%) of
the per annum rates at which deposits in immediately available funds
in Dollars for the number of months in the relevant LIBOR Interest
Period and in the amount of the LIBOR Loan to be disbursed or to
remain outstanding during such LIBOR Interest Period, as the case may
be, are offered to the Administrative Agent by the Reference Banks in
the London Interbank Eurodollar market, determined as of 11:00 a.m.
London time, two (2) London Banking Days prior to the beginning of the
relevant LIBOR Interest Period pertaining to a LIBOR Loan hereunder,
as appropriately adjusted by dividing such average LIBOR rate by 1.00
minus the applicable Reserve Percentage then in effect.
"LIBOR INTEREST PERIOD" shall mean a period of one, two, three, six or, if
available to the Banks, twelve months (as selected by the Company)
commencing on the applicable borrowing date of each LIBOR Loan
hereunder; provided, however, that if any such period would be
affected by a reduction in Commitment as provided in Section 2.5
hereof, prepayment as provided in Section 3.5 hereof or maturity of a
LIBOR Loan as provided in Section 2.1A or 2.1C hereof, such period
shall end on such date provided further that no such LIBOR Interest
Period shall end after the Termination Date. With respect only to
that portion of LIBOR Loans (as described in Section 2.1C hereof)
during the two (2) year Term Loan period which represents a mandatory
semi-annual installment of principal, the Company may not select a
LIBOR Interest Period the maturity of which would extend beyond the
due date of such installment payment without becoming subject to the
provisions of Section 2.1A(x) hereof.
"LIBOR LOAN" shall mean a Loan bearing interest at LIBOR.
"LOAN" shall mean the indebtedness of the Company with respect to each
advance of funds by a Bank hereunder.
"LONDON BANKING DAY" shall mean a day, other than a Saturday or Sunday, on
which banks are open for business in London, England and San
Francisco, California, quoting deposit rates for Dollar deposits.
"MAJORITY BANKS" shall mean Banks with an aggregate of sixty-six and
two-thirds percent (66 2/3%) or more of the Commitments on the
relevant date.
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"MARGIN" shall mean the number of basis points set forth in the following
table for the highest of the then current ratings assigned to the
Company's senior unsecured long-term debt by Xxxxx'x, S&P or
Duff & Xxxxxx:
XXXXX'X, S&P OR DUFF & XXXXXX BASIS POINTS
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AA-, Aa3 or higher 13.0
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A-, A3 16.0
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BBB, Baa2 20.0
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Lower than BBB or Baa2 25.0
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of
the Company's Consolidated Net Worth.
"MONEY MARKET NOTE" shall mean a Note or Notes executed and delivered
pursuant to Section 2.1B hereof.
"MONEY MARKET RATE" shall mean, with respect to any period of days
selected by the Company commencing on the applicable borrowing date
for a Money Market Rate Loan, the rate of interest per annum quoted by
any Bank to the Company for such Money Market Rate Loans.
"MONEY MARKET RATE LOAN" shall mean a Loan with an interest rate equal to
the Money Market Rate and as otherwise defined in Section 2.1B hereof.
"NOTE" or "NOTES" shall mean a note or notes executed and delivered
pursuant to Sections 2.1A, 2.1B or 2.1C hereof.
"OUTSTANDING MAJORITY BANKS" shall mean Banks with an aggregate of sixty-six
and two-thirds percent (66 2/3%) or more of the principal amount of
Loans hereunder on the relevant date.
"PERCENTAGE" shall mean, as to any Bank (as set forth on the Bank's
signature page hereof), the percentage of such Bank's share of the total
Commitments of all Banks; provided that if the Commitments are
terminated or reduced pursuant to Section 2.5 hereof, then
"Percentage" shall mean the percentage of such Bank's share of the
total Commitments of all Banks immediately after the termination or
reduction of Commitments.
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended from time to time ("ERISA") sponsored and maintained by the
Company, any Consolidated Subsidiary, or of any member of a controlled
group of corporations, as the term "controlled group of corporations"
is defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Company or any Consolidated Subsidiary is a
part, for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to the
Company which constitutes, or which with the lapse of any applicable
grace period or the giving of notice
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or both would constitute, any Event of Default and which has
not been appropriately waived by the Banks in writing or fully
corrected prior to becoming an Event of Default.
"REFERENCE BANKS" shall mean Trust Company Bank and The Bank of Nova
Scotia or any successor Bank(s) appointed by the Company, and
satisfactory to the holders of fifty-one percent (51%) by amount of
the Commitments, at any time, upon thirty (30) days prior written
notice to the Banks, to act as Reference Banks pursuant to the terms of
this Agreement.
"REGULATORY CHANGE" shall mean, as to any Bank, any change in United
States federal, state or foreign laws or regulations or the adoption
or making of any interpretations, directives, guidelines or requests
of or under any United States federal, state or foreign laws or
regulations enacted after the Effective Date (whether or not having the
force of law) by any court or governmental authority charged with the
interpretation or administration thereof.
"RELATED WRITING" shall mean any assignment, mortgage, security agreement,
subordination agreement, financial statement, audit report or other
writing furnished by the Company or any of its officers to the Banks
pursuant to or otherwise in connection with this Agreement.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the
Secretary of Labor under Section 110 of ERISA.
"RESERVE PERCENTAGE" shall mean, for any day, that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor)
for determining the reserve requirement (including but not limited to
any margin reserve requirement and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) which
is imposed on (a) commercial time deposits having an original maturity
of one (1) year or less and which is applicable to the class of banks
of which the Administrative Agent is a member; or (b) a Bank with
respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits, as the case may be.
"REVOLVING CREDIT LOAN" shall mean a Loan evidenced by a Revolving Credit
Note.
"REVOLVING CREDIT NOTE" shall mean a Note evidencing a Loan described in
Section 2.1A.
"SUBORDINATED INDEBTEDNESS" shall mean indebtedness which has been
subordinated (by written terms or agreement being in form and
substance reasonably satisfactory to the holders of fifty-one
percent (51%) by amount, of the Commitments) in favor of the prior
payment in full of the Company's Debt to the Banks.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority
of the outstanding capital stock or voting power, or both, of
which is (or upon the exercise of all outstanding warrants, options and
other rights would be) owned at the time in question by the Company or
by another such corporation(s) or by any combination of the Company and
such corporation(s).
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"TERM LOAN" shall mean a Loan evidenced by a Term Note.
"TERM NOTE" shall mean a Note executed and delivered pursuant to
Section 2.1C hereof.
"TERMINATION DATE" shall mean 12:01 a.m. on the fifth (5th) anniversary of
the Effective Date; provided, however, that commencing with the
first (1st) anniversary of the Effective Date, and each successive
anniversary thereafter, the Termination Date shall be extended
automatically by one (1) year periods with respect to any Bank which
fails to notify the Company, in writing, not less than forty-five (45)
days prior to such anniversary date that they wish to terminate their
Commitment four (4) years from the first anniversary date next
following the date written notice of termination was received.
"VOTING STOCK" shall mean stock of a corporation of a class or classes
having general voting power under ordinary circumstances to elect a
majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not the stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated
Subsidiary all of whose outstanding stock, other than directors'
qualifying shares, shall at the time be owned by the Company and/or by
one or more Wholly-Owned Consolidated Subsidiaries.
Any accounting term not specifically defined in this Article
shall have the meaning ascribed thereto by generally accepted
accounting principles in effect as of the date of the Company's then
most recent Financial Reports unless otherwise indicated.
The foregoing definitions shall be applicable to the singular
and plural of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms and
conditions of this Agreement each Bank will participate to the
extent hereinafter provided in making Loans to the Company in such
aggregate amounts as the Company shall request; provided, however, that
in no event shall the aggregate principal amount of all Loans
outstanding under this Agreement during the Commitment Period be in
excess of Two Hundred Fifty Million Dollars ($250,000,000).
Each borrowing from, and reduction of Commitment of the Banks
under paragraphs A and C below, may be made as Revolving Credit Loans
and as Term Loans as follows:
A. REVOLVING CREDIT LOANS
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(i) BORROWING RIGHTS AND RESTRICTIONS: Subject to the
terms and conditions of this Agreement, during the
Commitment Period each Bank will make a Loan or Loans
to the Company, pursuant to this Section 2.1A, in
such amount or amounts as the Company may request
from time to time but not exceeding in aggregate
principal amount, at any one time outstanding
hereunder, the Commitment of such Bank. Subject to
the provisions of this Agreement, the Company shall
be entitled under this Paragraph A to borrow funds,
repay the same
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in whole or in part, and reborrow hereunder at
any time and from time to time during the Commitment
Period. Each Loan made under this Paragraph A shall be
made pro rata according to each Bank's respective
Commitments.
(ii) LOAN AMOUNTS: The Company shall have the option,
subject to the terms and conditions set forth herein,
to borrow under this Section 2.1A up to the total of
all the Commitments by means of any combination of:
(a) ALTERNATE BASE RATE LOANS which shall be
payable on its due date and shall be drawn
down in aggregate amounts of not less than
Five Million Dollars ($5,000,000) or any
greater amount evenly divisible by One
Million Dollars ($1,000,000); and
(b) LIBOR LOANS which shall be payable on the
last day of the relevant LIBOR Interest
Period and shall be drawn down in aggregate
amounts of not less than Five Million Dollars
($5,000,000) or any greater amount evenly
divisible by One Million Dollars
($1,000,000).
(iii) PROCEDURE FOR BORROWING: The procedure for borrowing
under this Section 2.1A shall be as follows:
(a) Each such borrowing shall be made upon the
Company's written notice ("Notice") to the
Administrative Agent (which Notice must be
received by the Administrative Agent prior
to 11:00 a.m. New York time three (3) London
Banking Days prior to the requested
borrowing date in the event of a LIBOR Loan
and by 11:00 a.m. New York time on the same
Banking Day of the proposed date of such
borrowing in the event of an Alternate Base
Rate Loan). The Notice shall specify:
(1) the amount of the borrowing;
(2) the requested borrowing date which
shall be a Banking Day;
(3) the type of Loan(s) comprising
the borrowing; and
(4) the duration of the LIBOR Interest
Period for any LIBOR Loan(s) and
the maturity date of any Alternate
Base Rate Loan(s).
(b) The Administrative Agent shall promptly
notify each Bank of (i) its receipt of a
Notice of borrowing, (ii) the amount of each
Bank's pro-rata share of such borrowing; and
(iii) the name of the Company's bank, the
Company's account number and American Banking
Association routing number of the bank at
which the Company's account is maintained and
to which such pro-rata shares shall be
routed.
(c) Each Bank's pro-rata share of each Revolving
Credit Loan shall be delivered by each such
Bank to the Company not later than 3:00 p.m.
New York time on the last day of the notice
period set forth herein, time being of the
essence, in immediately available Dollars by
wire transfer to an account of the Company
designated by the Company, from time to time
in writing to the Administrative Agent, with
the account number and
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American Banking Association routing
number of the bank at which such account is
maintained.
(iv) INTEREST RATES: The Company shall pay interest on
Revolving Credit Loans:
(a) at the Alternate Base Rate on the unpaid
principal amount of Alternate Base Rate Loans
outstanding from time to time from the date
of receipt of funds by the Company until
paid, payable on the last business day of
each calendar quarter and on the maturity
date, computed on the basis of a 365 or 366
day year as the case may be; and
(b) at LIBOR plus the applicable Margin
(converted to percentage points) on the unpaid
principal amount of LIBOR Loans outstanding
from time to time from the date on which
funds are received by the Company until paid,
payable (a) on the last day of the LIBOR
Interest Period (computed on the basis of a
year having 360 days calculated on the basis
of the actual number of days elapsed) or (b)
every three (3) months or ninety (90) days in
the event any such LIBOR Interest Period
exceeds three (3) months or ninety (90) days.
(v) PAYMENTS ON REVOLVING CREDIT NOTES, ETC.: All
payments of principal and interest shall be
made to the Administrative Agent in immediately
available funds for the account of the Banks by no
later than 3:00 p.m. (New York time) on the applicable
payment date. The Administrative Agent shall promptly
distribute to each Bank its ratable share of the
principal and interest received by it for the account
of such Bank. Each Bank shall endorse each Revolving
Credit Note held by it or otherwise make appropriate
book entries evidencing each payment of principal made
thereon, it being understood, however, that any Bank's
failure to record appropriate information on the
grid(s) attached to any such Note shall in no way
affect the obligation of the Company under this
Agreement or under any such Note. Whenever any
payment to be made hereunder, including without
limitation, any payment to be made on any Note, shall
be stated to be due on a day which is not a Banking
Day, such payment may be made on the next Banking Day
(but in any event not later than its maturity date)
and such extension of time shall in each case be
included in the computation of the interest payable on
such Note. Notwithstanding the previous sentence, in
the case of any LIBOR Loan, if the next Banking Day is
in a month other than the month the payment was
originally due, such payment may be made on the
immediately preceding Banking Day and such reduction
of time shall in each case be considered in the
computation of the interest payable on such Note.
(vi) REVOLVING CREDIT NOTES: The obligation of the Company
to repay the Alternate Base Rate Loans and the
LIBOR Loans made by each Bank and to pay interest
thereon shall be evidenced by non-negotiable Revolving
Credit Notes of the Company substantially in the form
of Schedule B hereto, with appropriate insertions,
dated the date of execution thereof by the Company and
payable to the order of such Bank on the maturity date
of such Loan, in the principal amount indicated
thereon. The principal amount of the Alternate Base
Rate Loans and the LIBOR Loans made by each Bank under
this Section 2.1A and all prepayments thereof and the
applicable dates with respect thereto shall be
recorded by such Bank from time to time on the grid(s)
attached to such Note or by appropriate book
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entry. The aggregate unpaid amount of Alternate Base
Rate Loans and LIBOR Loans set forth on the grid(s)
attached to each Revolving Credit Note shall be
rebuttable presumptive evidence of the principal
amount owing and unpaid on such Note, it being
understood, however, that any Bank's failure to so
record appropriate information on the grid(s) attached
to its respective Revolving Credit Note shall in no
way affect the obligations of the Company under this
Agreement or such Note.
(vii) INTEREST ON LATE PAYMENTS: If any Revolving Credit
Note shall not be paid at maturity, whether such
maturity occurs by reason of lapse of time or by
operation of any provision or acceleration of maturity
therein contained, the principal thereof and the
accrued and unpaid interest thereon shall bear
interest, until paid, at a rate per annum which shall
be 1.1 times the Alternate Base Rate from time to time
in effect.
(viii) LOAN REFINANCINGS: If any Revolving Credit
Loan is not repaid when due, unless otherwise
directed by the Company, and provided no Event
of Default exists hereunder, the Banks shall
refinance LIBOR Loans with successive LIBOR Loans
commencing on the date immediately following the
maturity date (unless otherwise agreed to by the
Company and the Banks) of such prior Loan and with the
same number of months for such Loan's LIBOR Interest
Period unless otherwise provided in this Agreement.
Such automatic Loans shall be deemed to have repaid
the principal in full of each prior Loan such that no
Event of Default would exist.
(ix) CONVERSION: At the Company's option, the Company may
at any time or from time to time, except if an
Event of Default exists, convert a LIBOR Loan or an
Alternate Base Rate Loan to any one of the other types
of Loan. Such conversion shall not be deemed to be a
prepayment. The provisions of this subsection shall
apply with respect to voluntary conversions or
conversions required hereunder. The Company, through
the Administrative Agent, shall give written or
telephonic notice to the Banks of each conversion by
11:00 a.m., New York time (a) on the date of such
conversion if such conversion is comprised of
Alternate Base Rate Loans, and (b) at least two (2)
Banking Days prior to the date of such conversion if
such conversion is comprised of LIBOR Loans. Each
such notice shall be effective upon receipt by the
relevant Bank and shall specify the date and amount of
such conversion, the type of Loans to be converted and
the type of Loans to be converted into. Each
conversion shall be in an aggregate amount of not less
than Five Million Dollars ($5,000,000) or any greater
amount evenly divisible by One Million Dollars
($1,000,000).
(x) PREPAYMENT.
(a) As to Alternate Base Rate Loans, the
Company shall have the right at any
time or from time to time, upon one (1)
Banking Days' prior written notice to the
Administrative Agent, without the payment of
any premium or penalty to prepay on a pro rata
basis, all or any part of the principal amount
of the Notes then outstanding as designated by
the Company plus interest accrued on the
amount so prepaid to the date of such
prepayment.
(b) As to LIBOR Loans, the Company shall have the
right at any time or from time to time, upon
four (4) London Banking Days' prior written
notice to
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the Administrative Agent, to prepay on
a pro rata basis, all or any part of the
principal amount of the Notes then outstanding
as designated by the Company, plus interest
accrued on the amount so prepaid to the date
of such prepayment. If LIBOR, as determined as
of 11:00 a.m. London time two (2) London
Banking Days prior to the date of prepayment
(hereinafter "Prepayment LIBOR"), shall be
lower than the last LIBOR previously
determined for the LIBOR Loan(s), with respect
to which prepayment is intended to be made
(hereinafter "Last LIBOR"), then the Company
shall promptly pay each of the Banks, in
immediately available funds, a prepayment
premium measured by a rate (the "Prepayment
Premium Rate") which shall be equal to the
difference between the Last LIBOR and the
Prepayment LIBOR. In determining the
Prepayment LIBOR, the Company shall apply a
rate equal to LIBOR (for a deposit
approximately equal to the amount of such
prepayment) which would be applicable to a
LIBOR Interest Period commencing on the date
of such prepayment and having a duration equal
to the LIBOR Interest Period described in
Article I hereof with a length closest to the
remaining duration of the actual LIBOR
Interest Period during which such prepayment
is to be made. The Prepayment Premium Rate
shall be applied to all or such part of the
principal amount of the Notes as related to
the LIBOR Loans to be prepaid, and the
prepayment premium shall be computed for the
period commencing with the date on which said
prepayment is to be made to that date which
coincides with the last day of the LIBOR
Interest Period previously established when
the LIBOR Loans, which are to be prepaid, were
made. Each prepayment of a LIBOR Loan shall
be in the aggregate principal sum of not less
than One Million Dollars ($1,000,000). In the
event the Company fails to borrow or convert
into a proposed LIBOR Loan subsequent to the
delivery to the Banks of the notice of the
proposed date, aggregate amount and initial
LIBOR Interest Period of such Loan, but prior
to the draw down of funds thereunder, such
failure to borrow or convert shall be treated
as a prepayment subject to such prepayment
premium. Notwithstanding the above, no
prepayment premium shall be due and owing by
the Company if the Company makes such payment
on the Interest Adjustment Date applicable to
the Loan being paid.
B. MONEY MARKET RATE LOANS
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(i) BORROWING RESTRICTIONS: Subject to the terms and
conditions of this Agreement, during the
Commitment Period each Bank may make (but is not
obligated to make) a Money Market Rate Loan to the
Company in such amount or amounts as the Company may
from time to time request, not exceeding in aggregate
principal amount, at any one time outstanding
hereunder, the sum Two Hundred Fifty Million Dollars
($250,000,000). Subject to the provisions of this
Agreement, the Company shall be entitled under this
Paragraph B to borrow funds, repay the same in whole
or in part and reborrow hereunder at any time and from
time to time from any Bank making Money Market Rate
Loans to the Company. The Administrative Agent shall
not be involved, in its capacity as such agent, in any
borrowing(s) by the Company under this Section 2.1B.
The procedures for any such Loan shall be as agreed
upon by the Company and each Bank making a Loan under
Paragraph B.
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(ii) LOAN AMOUNTS: The Company shall have the option,
subject to the terms and conditions set forth herein,
to borrow under this Section 2.1B from any Bank
an amount not to exceed the total of all Commitments
in amounts of not less than Five Million Dollars
($5,000,000) or any greater amount evenly divisible by
One Million Dollars ($1,000,000).
(iii) INTEREST RATES: The Company shall pay interest on
the unpaid principal amount of any Money Market
Rate Loan outstanding from time to time from the date
on which funds are received by the Company until paid,
at the Money Market Rate. Except as may be otherwise
agreed by the Company and the Bank making a Money
Market Rate Loan, interest shall be payable at the
maturity of such Loan and shall be computed on the
basis of a 365 or 366 day year, as the case may be.
(iv) MONEY MARKET NOTES: The obligation of the Company to
repay Money Market Rate Loans and to pay interest
thereon, shall be evidenced by a Money Market
Note substantially in the form of Schedule C hereto,
dated the date of execution thereof by the Company and
payable to the order of such Bank in accordance with
the terms and conditions of such Money Market Note.
(v) INTEREST ON LATE PAYMENTS: If any Money Market Note
shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of
any provision of acceleration of maturity therein
contained, the principal thereof and the unpaid
interest thereon shall bear interest, until paid,
at a rate per annum which shall be 1.1 times the
Alternate Base Rate from time to time in effect.
(vi) PAYMENT: All payments of principal and interest due
on Money Market Rate Loans shall be paid by the
Company directly to any Bank making a Money Market
Rate Loan to the Company.
C. TERM LOAN
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(i) BORROWING RIGHTS AND RESTRICTIONS:
Subject to the terms and conditions of this Agreement,
at any time prior to the end of the Commitment Period,
each Bank will make a two (2) year Term Loan to the
Company in such amount, if any, as the Company may
request, but not exceeding the Commitment of such Bank
then in effect. In the event the Company makes
borrowings under this Section 2.1C, no further
borrowing shall be made under Section 2.1A hereof,
notwithstanding anything in this Agreement to the
contrary. If at any time a borrowing shall be made
under this Section 2.1C there shall be outstanding any
Revolving Credit Notes issued under Section 2.1A
hereof, then the proceeds of the Term Loans made under
this Section 2.1C shall be applied in full or to the
extent necessary, as the case may be, to the payment
in full of the principal of and interest on such Notes
even though the same shall not be due by their terms.
The preceding sentence shall constitute an
authorization and direction by the Company to each
Bank to so apply the proceeds of such Term Loan so
made by such Bank under this Section 2.1C to the
payment in full of the principal of and interest on
all Notes issued under Section 2.1A hereof which are
owned by such Bank. Any borrowing under this Section
2.1C and any application of proceeds to the payment of
Notes outstanding under Section 2.1A hereto shall be
deemed to be effected
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simultaneously so that, for the purpose of this
Agreement, Notes shall not be deemed to be outstanding
under Section 2.1A at the same time Notes are
outstanding under Section 2.1C hereof. Any prepayment
of the Notes outstanding under Section 2.1A shall be
subject to Section 2.1A(x) hereof. Subject to the
provisions of this Agreement, the Company shall be
entitled under this Section 2.1C to borrow funds,
repay the same and enter into new borrowings hereunder
at any time and from time to time during the
Commitment Period. The proceeds of each Term Loan
shall be delivered to the Company not later than 3:00
p.m. Cleveland, Ohio time on the last day of the
notice period set forth in Section 2.2(i), time being
of the essence, in immediately available Dollars by
wire transfer to an account of the Company designated
by the Company, from time to time in writing to the
Administrative Agent, with the account number and
American Banking Association routing number of the
bank at which such account is maintained.
(ii) LOAN AMOUNTS: Alternate Base Rate Loans and LIBOR
Loans shall be in aggregate amounts of not less than
Five Million Dollars ($5,000,000) or any
greater amount evenly divisible by One Million Dollars
($1,000,000), but either may be in lesser amounts with
respect to mandatory semi-annual installments of
principal or as a result of such semi-annual
installments of principal having been made.
(iii) PROCEDURES FOR BORROWING: The procedures for
borrowing under this Section 2.1C shall be as follows:
(a) Any such borrowing prior to the scheduled
Expiration Date shall be made pro-rata among
the Banks and shall be made upon the
Company's written notice to the Administrative
Agent (which notice must be received by the
Administrative Agent prior to 11:00 a.m. New
York time three (3) London Banking Days prior
to the requested borrowing date in the event
of a LIBOR Loan and by 11:00 a.m. New York
time on the same Banking Day of the proposed
date of such borrowing in the event of an
Alternate Base Rate Loan. Such notice shall
specify:
(1) the amount of the borrowing;
(2) the requested borrowing date which
shall be a Banking Day; and
(3) the type of Loan(s) comprising the
borrowing; and
(4) the duration of the LIBOR Interest
Period for any LIBOR Loan(s) and the
maturity date of any Alternate Base
Rate Loan(s).
(b) The Administrative Agent shall promptly notify
each Bank of (i) its receipt of each of the
Company's notice of borrowing, (ii) the
amount of each Bank's pro-rata share of such
borrowing; and (iii) the name of the Company's
bank, the Company's account number and
American Banking Association routing number of
the bank at which the Company's account is
maintained and to which such pro-rata shares
shall be routed.
(c) Each Bank's pro-rata share of each Term Loan
shall be delivered by each such Bank to the
Company not later than 3:00 p.m. New York
time on the
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last day of the notice period set forth herein,
time being of the essence, in immediately
available Dollars by wire transfer to an
account of the Company designated by the
Company, from time to time in writing to the
Administrative Agent, with the account number
and American Banking Association routing number
of the bank at which such account is
maintained.
Any borrowing under this Section 2.1C(iii) which is to be made
on or subsequent to the scheduled Expiration Date (during any
extension hereof) shall not be pro-rata among the Banks.
(iv) INTEREST RATES:
(a) If the Term Loans are Alternate Base Rate
Loans, the Company shall pay interest
(computed on the basis of a year having 365 or
366 days, as the case may be) on the unpaid
principal amount thereof outstanding from
time to time from the date of such Loan
until paid, payable quarterly in arrears,
during the term of such Loan and upon
prepayment and if not paid at maturity thereof
at the Alternate Base Rate plus one-quarter of
one percent (1/4%) per annum for the Term
Notes evidencing such Term Loans. Any change in
such rate resulting from a change in the
Alternate Base Rate shall be effective
immediately from and after such change in the
Alternate Base Rate.
(b) If the Term Loans are LIBOR Loans, the Company
shall pay interest (computed on the basis of a
year having 360 days and calculated on the
basis of the number of days elapsed) at a
fixed rate for each LIBOR Interest Period on
the unpaid principal amount of LIBOR Loans
outstanding from time to time from the date of
such Loan until paid, payable on each Interest
Adjustment Date with respect to a LIBOR
Interest Period (provided that if a LIBOR
Interest Period exceeds three (3) months, the
interest must be paid every three (3) months,
commencing three (3) months from the beginning
of such LIBOR Interest Period), at LIBOR plus
one-quarter of one percent (1/4%) per annum for
the Term Notes evidencing such Term Loans,
fixed in advance of each LIBOR Interest Period
as herein provided for each LIBOR Interest
Period.
(v) LOAN CONVERSIONS: All of the Term Loans outstanding at
any time must be either Alternate Base Rate Loans or
LIBOR Loans, but the Banks, at the request of
the Company, shall convert Alternate Base Rate Loans
to LIBOR Loans at any time, except if an Event of
Default exists, and shall convert LIBOR Loans or to
any other type of Loans permitted by this Paragraph C
on any Interest Adjustment Date, except if an Event of
Default exists, applicable to such LIBOR Loan but each
request for Loans under this Section 2.1C must either
be for Alternate Base Rate Loans or LIBOR Loans. In
the event of any conversion under this Section 2.1C,
the procedures set forth in Section 2.1A(ix) shall be
followed by the Company.
(vi) TERM LOAN NOTE: The obligation of the Company to
repay the Alternate Base Rate Loans and the LIBOR
Loans made by each Bank under this Section 2.1C and to
pay interest thereon shall be evidenced by a Term Note
of the Company substantially in the form of
Schedule D hereto, with appropriate insertions, dated
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the date of execution thereof by the Company
and payable to the order of such Bank in the principal
amount of its Commitment, or if less, the aggregate
unpaid principal amount of Term Loans made hereunder by
such Bank, in four (4) substantially equal
installments, commencing six (6) months from the date
thereof. The principal amount of the Alternate Base
Rate Loans and LIBOR Loans made by each Bank and all
prepayments thereof and the applicable dates with
respect thereto shall be recorded by such Bank from
time to time on the grid(s) attached to such Note or by
appropriate book entry. The aggregate unpaid amount of
Alternate Base Rate Loans and LIBOR Loans set forth on
the grid(s) attached to each Term Note shall be
rebuttable presumptive evidence of the principal amount
owing and unpaid on such Note, it being understood,
however, that any Bank's failure to so record
appropriate information on the grid(s) attached to its
respective Note shall in no way affect the obligations
of the Company under this Agreement or such Note.
(vii) INTEREST ON LATE PAYMENTS: If any Term Note shall not
be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any
provision of acceleration of maturity therein
contained, the principal thereof and the unpaid
interest thereon shall bear interest, until paid, at
a rate per annum which shall be 1.1 times the
Alternate Base Rate from time to time in effect.
SECTION 2.2. CONDITIONS TO CERTAIN LOANS OR CONVERSIONS. The obligation of
each Bank to make the Loans described in Section 2.1A or C hereunder is
conditioned, in the case of each borrowing or conversion hereunder, upon:
(i) the fact that no Possible Default or Event of Default
shall then exist or immediately after the Loan would
exist; and
(ii) the fact that the representations and warranties
contained in Article IV hereof shall be true and
correct in all material respects with the same force
and effect as if made on and as of the date of such
borrowing or conversion.
Each borrowing or conversion by the Company hereunder shall be deemed
to be a representation and warranty by the Company as of the date of such
borrowing as to the facts specified in Sections 2.2 (i) and (ii) above.
SECTION 2.3. FACILITY FEES. The Company agrees to pay to each Bank an
annual Facility Fee, for the period from and including the date of this
Agreement to the earlier of (i) the Termination Date or (ii) the
termination of the Commitments pursuant to Section 2.5 hereof. The first
payment of the Facility Fee shall be made no later than October 5, 1995 for
the period August 31, 1995 to September 30, 1995. All payments of the
Facility Fee shall be made to the Administrative Agent in immediately
available funds for the account of the Banks by no later than 3:00 p.m.
(New York time) on the applicable payment date. The Administrative Agent
shall promptly distribute to each Bank its ratable share of the Facility
Fee received by it for the account of such Bank.
SECTION 2.4. COMPUTATION OF FACILITY FEES. Facility Fees shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
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SECTION 2.5. TERMINATION OF COMMITMENTS AND RIGHT OF SUBSTITUTION.
(i) The Company may at any time or from time to time
terminate in whole or ratably in part the Commitments
of all of the Banks to an amount not less than the
aggregate principal amount of the Loans then outstanding
under this Agreement, by giving the Banks and the
Administrative Agent not less than two (2) Banking Days'
notice of the aggregate amount of such partial
termination (which shall not be less than Five Million
Dollars ($5,000,000) or any greater amount evenly
divisible by One Million Dollars ($1,000,000) ) and such
Bank's proportionate amount of such partial termination.
If the Company terminates in whole the Commitments of the
Banks, on the effective date of such termination
(provided the Company has prepaid in full the unpaid
principal balance, if any, of the Notes outstanding
together with all accrued and unpaid interest, if any,
Facility Fees accrued and unpaid, and any applicable
prepayment premiums) all of the Notes outstanding shall
be delivered to the Company marked "Cancelled". Any
partial termination of the Commitments shall be
irrevocable during the remainder of the Commitment
Period.
(ii) The Company may at any time or from time to time
terminate or reduce the Commitment of any Bank
hereunder to an amount not less than the aggregate
principal amount of the Loans then outstanding by such
Bank under this Agreement:
(a) immediately if such Bank satisfies any of the
criteria for insolvency described in Section 7.5
hereof; or
(b) upon not less than two (2) Banking Days' notice
to such Bank and the Administrative Agent if the
Company, in its sole discretion, elects to
terminate the Commitment of such Bank for any
reason including, but not limited to, the default
of such Bank under the terms of this Agreement.
(iii) In the event the Commitment of any Bank is terminated
by the Company, the Company shall have the right to
replace such Bank with a successor bank or banks
(including any bank or banks which is a party to this
Agreement with the consent of such bank or banks) with a
Commitment not to exceed the Commitment of the
terminated Bank(s); provided that such successor bank
shall, pursuant to a written instrument in form and
substance satisfactory to the Company, effectively agree
to become a party hereto and a "Bank" hereunder and be
bound by the terms hereof.
(iv) In the event of a default of any Bank under the
terms of this Agreement, the Company's election to
terminate the Commitment of such Bank shall not act as a
waiver of any other remedies which the Company may have
for such default.
(v) The termination of the Commitment of any Bank
pursuant to Section 2.5(ii) hereof shall not affect the
Commitments or the obligations of all remaining Banks
under this Agreement.
(vi) After any termination or reduction of the Commitments
as described in this Section 2.5, the Facility Fees
payable hereunder shall be calculated upon the
Commitments of the Banks as so reduced.
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ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS
SECTION 3.1. RESERVES OR DEPOSIT REQUIREMENTS, ETC. If at any time after
the Effective Date any new law, treaty or regulation (including,
without limitation, Regulation D of the Board of Governors of the
Federal Reserve System) or the published interpretation thereof by any
governmental authority charged with the administration thereof or any
central bank or other fiscal, monetary or other authority shall impose
(whether or not having the force of law), modify or deem applicable any
reserve and/or special deposit requirement (other than reserves: (a)
included in the Reserve Percentage, the effect of which is reflected in
the interest rate(s) of the LIBOR Loan(s) in question or (b)
attributable to requirements imposed by the Board of Governors of the
Federal Reserve System on any Bank as a result of the failure of any
such Bank to maintain necessary current capitalization or financial
conditions imposed thereby) against assets held by, or deposits in or
for the account of any Loans by any Bank, and the result of the
foregoing is to increase the cost to such Bank of making or maintaining
LIBOR Loans or reduce the amount of principal or interest received by
such Bank with respect to LIBOR Loans, then upon demand by such Bank
the Company shall pay to such Bank from time to time on Interest
Adjustment Dates with respect to such Loans, as additional
consideration hereunder, additional amounts sufficient to fully
compensate and indemnify such Bank for such increased cost or reduced
amount, provided that such additional cost or reduced amount were
allocable to such LIBOR Loans.
A certificate as to the increased cost or reduced amount (hereinafter
in this Section 3.1 collectively called "Increased Costs") as a result
of any event mentioned in this Section 3.1, setting forth the
calculations therefor, shall be promptly submitted by such Bank to the
Company for its review. The Company shall pay such Increased Costs for
such period of time prior to the date such certificate is received by
the Company during which such Regulatory Change, by its terms, applies
retroactively to any period of time prior to the date such Regulatory
Change became effective. In addition, the Company shall pay such
Increased Costs incurred by a Bank on and after the date such
certificate is received by the Company unless the Company,
notwithstanding any other provision of this Agreement, promptly,
(i) upon at least three (3) Banking Days' prior written notice to
such Bank, prepays the affected LIBOR Loans in full or
converts all LIBOR Loans to Alternate Base Rate Loans
regardless of the interest period thereof, or
(ii) terminates the Commitment of such Bank pursuant to Section 2.5
hereof (provided that the Company shall pay such Increased
Costs on any LIBOR Loans from such Bank which remain
outstanding).
Each Bank will notify the Company as promptly as practicable of the
existence of any event which will likely require the payment by the
Company of any such additional amount under this Section.
SECTION 3.2. CHANGES IN TAX LAWS. In the event that by reason of any new
law, regulation or requirement or any change in any existing law,
regulation or requirement or in the interpretation thereof by an
official authority, or the imposition of any requirement of any central
bank whether or not having the force of law, (i) any Bank shall, with
respect to this Agreement or any transaction under this Agreement, be
subject to any tax, levy, impost, charge, fee, duty, deduction or
withholding of any kind whatsoever (other than any tax imposed upon the
total net income of such Bank or imposed on or calculated with respect
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to the value of the assets of such Bank) or (ii) any change shall occur
in the taxation of any Bank with respect to any LIBOR Loan and the
interest payable thereon (other than any change which affects, and to
the extent that it affects, the taxation of the total net income of
such Bank or imposed on or calculated with respect to the value of the
assets of such Bank), and if any such measures or any other similar
measure shall result in an increase in the cost to such Bank of making
or maintaining any LIBOR Loan or in a reduction in the amount of
principal, interest or Facility Fee receivable by such Bank in respect
thereof, then such Bank shall promptly notify the Company stating the
reasons therefor.
A certificate as to any such increased cost or reduced amount
(hereinafter in this Section 3.2 collectively called "Increased Costs")
as a result of any event mentioned in this Section 3.2, setting forth
the calculations therefor, shall be submitted by such Bank to the
Company for its review. The Company shall pay such Increased Costs for
such period of time prior to the date such certificate is received by
the Company during which such Regulatory Change, by its terms, applies
retroactively to any period of time prior to the date such Regulatory
Change became effective. In addition, the Company shall pay such
Increased Costs incurred by such Bank on and after the date such
certificate is received by the Company unless the Company,
notwithstanding any other provision of this Agreement, promptly,
(i) upon at least three (3) Banking Days' prior written
notice to such Bank and the Administrative Agent,
prepays the affected LIBOR Loans in full or converts
all LIBOR Loans to Alternate Base Rate Loans
regardless of the interest period thereof, or
(ii) terminates the Commitment of such Bank pursuant to
Section 2.5 hereof (provided that the Company
shall pay such Increased Costs on any LIBOR Loans from
such Bank which remain outstanding).
If any Bank receives such additional consideration from the Company
pursuant to this Section 3.2 and thereafter obtains the benefits of any
refund, deduction or credit for any taxes or other amounts on account
of which such additional consideration has been paid, such Bank shall
pay to the Company its allocable share thereof and shall reimburse the
Company to the extent, but only to the extent, that such Bank shall
have actually received a refund of such taxes or other amounts together
with any interest thereon or an effective net reduction in taxes or
other governmental charges (including any taxes imposed on or measured
by the total net income of such Bank) of the United States or any state
or subdivision thereof by virtue of any such deduction or credit, after
first giving effect to all other deductions and credits otherwise
available to such Bank. If, at the time any audit of such Bank's
income tax return by any taxing agency is completed, such Bank
determines, based on such audit, that it was not entitled to the full
amount of any refund reimbursed to the Company as aforesaid or that its
net income taxes are not reduced by a credit or deduction for the full
amount of taxes reimbursed to the Company as aforesaid, the Company,
upon demand of such Bank, will promptly pay to such Bank the amount so
refunded to which such Bank was not so entitled, or the amount by which
the net income taxes of such Bank were not so reduced, as the case may
be. The provisions of this Section 3.2 shall survive the
termination of this Agreement.
SECTION 3.3. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE
UNASCERTAINABLE. In the event the Majority Banks shall have
determined, in good faith and reasonably, that Dollar deposits of the
relevant amount for the relevant LIBOR Interest Period for LIBOR Loans
are not available to the Banks in the London Interbank Eurodollar
market or that, by reason of circumstances affecting such market,
adequate and reasonable means do not exist for ascertaining LIBOR
applicable to such determination to the Company then (i) any notice of
new LIBOR Loans (or conversion of existing Loans to LIBOR Loans)
previously given by the Company and not yet borrowed (or converted, as
the case may be) shall be deemed a notice to make Alternate Base Rate
Loans unless the Company notifies the Administrative Agent to the
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contrary, and (ii) the Company shall be obligated either to prepay or
to convert any outstanding LIBOR Loans on the last day of the then
current LIBOR Interest Period or Periods with respect thereto.
SECTION 3.4. INDEMNITY. Without limitation of any other provisions of this
Article III, the Company hereby agrees to indemnify the Administrative
Agent and each Bank against any loss or expense (excluding
consequential, incidental or special damages) which the Administrative
Agent or such Bank may sustain or incur as a direct result of any
default by the Company in the payment when due of any amount due
hereunder with respect to any LIBOR Loan (including, but not limited
to, any loss of profit, premium or penalty incurred by such Bank as a
result of such default with regard to funds borrowed by it for the
purpose of making or maintaining such LIBOR Loan, as determined by such
Bank in the exercise of its reasonable discretion). A certificate as
to any such loss or expense shall be promptly submitted by such Bank to
the Company for its review and to the Administrative Agent and shall be
paid by the Company in the absence of manifest error.
SECTION 3.5. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time
any new law, treaty or regulation, or any change in any existing law,
treaty or regulation, or any published interpretation thereof by any
governmental or other regulatory authority charged with the
administration thereof, shall make it unlawful for any Bank to fund,
refinance, continue or convert into any LIBOR Loans which it is
committed to make hereunder with moneys obtained in the London
Interbank Eurodollar market, the Commitment of such Bank to fund,
refinance, continue or convert into LIBOR Loans shall, upon the
happening of such event, be suspended for the duration of such
illegality and such Bank shall by written notice to the Company and the
Administrative Agent declare that its Commitment with respect to such
Loans has been so suspended and, if and when such illegality ceases to
exist, such suspension shall cease and such Bank shall similarly notify
the Company and the Administrative Agent. If any such change shall
make it unlawful for any Bank to continue in effect the funding in the
London Interbank Eurodollar market of any LIBOR Loan previously made by
it hereunder, such Bank shall, upon the happening of such event, notify
the Company and the other Banks thereof in writing stating the reasons
therefor and the Company shall, on the earlier of (i) the last day of
the then current LIBOR Interest Period or (ii) if required by such law,
regulation or interpretation, on such date as shall be specified in
such notice, either convert all LIBOR Loans to Alternate Base Rate
Loans or prepay all LIBOR Loans to the Banks in full. Any such
prepayment or conversion shall not be subject to the prepayment
premiums prescribed in Section 2.1A(x) hereof. Any requests for a
LIBOR Loan not funded pursuant to this Section shall be deemed to have
been a request for an Alternate Base Rate Loan.
SECTION 3.6. FUNDING. Each Bank may, but shall not be required to, make
LIBOR Loans hereunder with funds obtained outside the United States.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
SECTION 4.1. CORPORATE EXISTENCE. The Company is a corporation duly
organized and in good standing under the laws of the State of Ohio.
SECTION 4.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by the Company of this Agreement and the Notes are within
the Company's corporate powers,
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have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any provision of applicable
law in effect on the date hereof or of the Amended Articles of
Incorporation or Regulations of the Company or of any agreement for
borrowed money or other material agreement binding upon the Company.
The Company has duly executed and delivered this Agreement.
SECTION 4.3. VALIDITY AND BINDING NATURE. This Agreement is, and the Notes
when duly executed and delivered will be, legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms.
SECTION 4.4. LITIGATION AND LIENS. To the best of the Company's knowledge,
no litigation or proceeding is pending which would, if successful, have
a Material adverse impact on the financial condition of the Company and
the Consolidated Subsidiaries taken as a whole, which is not already
reflected in the Company's Financial Reports delivered to the Banks
prior to the date of this Agreement. The Internal Revenue Service has
not alleged any Material default by the Company in the payment of any
tax or threatened to make any Material assessment in respect thereof
which would have or reasonably could have a Material adverse impact on
the financial condition of the Company and the Consolidated
Subsidiaries, taken as a whole.
SECTION 4.5. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency
within the meaning of the ERISA and the regulations thereunder. No
Reportable Event has occurred with respect to any Plan which would have
a Material adverse financial impact on the Company or any of its
Consolidated Subsidiaries, taken as a whole. The Pension Benefit
Guaranty Corporation, established under ERISA, has not asserted that
the Company or any Consolidated Subsidiary has incurred any Material
liability in connection with any Plan. No Material lien has been
attached and no person has threatened to attach such a lien on any
property of the Company and any Consolidated Subsidiary as a result of
the Company's or any Consolidated Subsidiary's failure to comply
with ERISA.
SECTION 4.6. ENVIRONMENTAL MATTERS. To the best of the Company's
knowledge, the Company and each Subsidiary is in substantial compliance
with all applicable existing laws and regulations (other than laws and
regulations the validity or applicability of which are being contested
by the Company or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted) relating to
environmental control in all jurisdictions where the Company or any
Subsidiary is presently doing business and the Company and each
Subsidiary (to the extent applicable to its operations) is in
substantial compliance with the Occupational Safety and Health Act of
1970 and all rules, regulations and applicable orders thereunder (other
than rules, regulations and orders the validity or applicability of
which are being contested by the Company or a Subsidiary, as the case
may be, in good faith by appropriate proceedings diligently prosecuted).
SECTION 4.7. FINANCIAL REPORTS. The Financial Reports of the Company and
the Consolidated Subsidiaries, furnished to each Bank prior to the date
of this Agreement or from time to time pursuant to this Agreement shall
be true and complete, prepared in accordance with generally accepted
accounting principles, except as stated therein, and fairly present the
Company's and its Consolidated Subsidiaries' financial condition and
the results of their operations for the period encompassed by such
Financial Reports. Since the dates of the Company's most recent
Financial Reports until the date of this Agreement there has been no
material adverse change in the consolidated financial condition of the
Company and the Consolidated Subsidiaries taken as a whole.
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SECTION 4.8. REGULATION U. Neither the Company nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or
selling margin stock or extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System). Each of the
Banks represents and warrants to the Company that it is not relying on
and will not rely on any margin stock (as described above) in
determining whether to extend or maintain credit under this Agreement.
SECTION 4.9. GOVERNMENT REGULATION. Neither the Company nor any of its
Consolidated Subsidiaries is registered or is required to be registered
as a public utility under the Public Utility Holding Company Act of
1935 or as an investment company under the Investment Company Act of
1940.
SECTION 4.10. TAXES. The Company and its Consolidated Subsidiaries have
filed all United States federal income tax returns and all other
material tax returns which are required to have been filed by them
(subject to any available extensions) and have paid all taxes indicated
as due on such returns except for any such taxes being contested by
the Company or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted (the Company has made
adequate and reasonable provision for all material taxes not yet due
and payable), if any, and all material assessments, if any.
SECTION 4.11. DEFAULTS. No Possible Default exists which would have or
reasonably could have a Material adverse impact on the financial
condition of the Company and the Consolidated Subsidiaries, taken as a
whole.
ARTICLE V. OPENING COVENANTS
Prior to or concurrently with the execution and delivery of this
Agreement, the Company shall furnish to each Bank the following:
SECTION 5.1. RESOLUTIONS. Certified copies of the resolutions of the board
of directors of the Company evidencing approval of the execution of this
Agreement and the execution and delivery of the Notes as provided for
herein.
SECTION 5.2. LEGAL OPINION. A favorable opinion of counsel for the Company
as to the matters referred to in Sections 4.1, 4.2, 4.3, 4.4, 4.6 and
4.8 of this Agreement and such other matters as the Banks may
reasonably request.
SECTION 5.3. CERTIFICATE OF INCUMBENCY. A certificate of the secretary or
assistant secretary of the Company certifying the names of the officers
of the Company authorized to sign this Agreement, and the Notes,
together with the true signatures of such officers.
SECTION 5.4. FINANCIAL REPORTS. The Financial Reports of the Company and
the Consolidated Subsidiaries, dated December 31, 1994, previously
furnished to each Bank, are true and complete, have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with those used by the Company and the Consolidated
Subsidiaries during the Company's immediately preceding full fiscal
year, except as stated therein, and fairly present the Company's and
the Consolidated Subsidiaries' financial condition as of that date and
the results of their operations for the interim period then ending.
Since that date there has been no material adverse change in the
Company's and the Consolidated Subsidiaries' financial condition,
properties or business taken as a whole.
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ARTICLE VI. COVENANTS
Until the later of (i) the expiration of the Commitments or (ii) all
obligations of the Company hereunder and under the Notes are satisfied and
paid in full, the Company agrees that, unless at any time the Majority
Banks shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. The Company will (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly maintained
by companies similarly situated, and (b) upon any Bank's written request,
furnish to such Bank such information about the Company's and its
Consolidated Subsidiaries' insurance as such Bank may from time to time
reasonably request, which information shall be prepared in form and detail
reasonably satisfactory to such Bank.
SECTION 6.2. FINANCIAL REPORTS. The Company will furnish to the
Administrative Agent and each Bank:
(i) within sixty (60) days after the end of each of the first
three quarter-annual periods of each of its fiscal years (and,
in any event, in each case as soon as available), the
quarterly Financial Report of the Company and the Consolidated
Subsidiaries as at the end of that period, prepared on a
consolidated basis;
(ii) within ninety (90) days after the end of each of its fiscal
years (and, in any event, in each case as soon as available),
the annual Financial Report of the Company and the
Consolidated Subsidiaries for that year prepared on a
consolidated basis;
(iii) within sixty (60) days after the end of each of its quarterly
accounting periods and within ninety (90) days after the end
of its annual accounting period, a statement signed by a
financial officer of the Company reflecting compliance with
Section 6.3 hereof and to the effect that no Event of Default
has occurred and is continuing or, if there is any such event,
describing it and the steps being taken, if any, to cure such
event;
(iv) promptly after filing with the Securities and Exchange
Commission, any Form 8-K or Schedule 13D filings applicable to
the Company (or any successor forms or schedules promulgated
by the Securities and Exchange Commission from time to time
which encompass the matters currently addressed in Form 8-K
and Schedule 13D);
(v) written notice of any change in the rating assigned to the
Company's senior unsecured long-term debt by Xxxxx'x, S&P or
Duff & Xxxxxx within thirty (30) days of such change; and
(vi) such other financial information regarding the Company as any
Bank may reasonably request.
SECTION 6.3. NET WORTH. The Company will not permit its Consolidated Net
Worth at any time to fall below Eight Hundred Million Dollars
($800,000,000).
SECTION 6.4. REGULATIONS U AND X. The Company will not nor will it permit
any Subsidiary to take any action that would result in any non-compliance
of the Loans made
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hereunder with Regulation U and X of the Board of Governors of the Federal
Reserve System. The Company's use of proceeds of any borrowings under this
Agreement will not cause a violation of Regulation U or X.
SECTION 6.5. MERGER AND SALE OF ASSETS. The Company will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or
consolidate with any other corporation or sell, lease or transfer or
otherwise dispose of all or, during any twelve (12) month period, a
substantial part of its assets to any person or entity (except as otherwise
provided herein); provided, however, if no Possible Default shall then
exist or immediately thereafter will begin to exist:
(i) Any Consolidated Subsidiary may merge with (a) the Company
(provided that the Company shall be the continuing or
surviving corporation) or (b) any one or more other
Consolidated Subsidiaries provided that either the continuing
or surviving corporation shall be a Wholly-Owned Consolidated
Subsidiary, or after giving effect to any merger pursuant to
this sub-clause (b), the Company and/or one or more
Wholly-Owned Consolidated Subsidiaries shall own not less than
the same percentage of the outstanding Voting Stock of the
continuing or surviving corporation as the Company and/or one
or more Wholly-Owned Consolidated Subsidiaries owned of the
merged Consolidated Subsidiary immediately prior to such
merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to (a) the Company, (b)
any Wholly-Owned Consolidated Subsidiary or (c) any
Consolidated Subsidiary of which the Company and/or one or
more Wholly-Owned Consolidated Subsidiaries shall own not less
than the same percentage of Voting Stock as the Company and/or
one or more Wholly-Owned Consolidated Subsidiaries then own of
the Consolidated Subsidiary making such sale, lease, transfer
or other disposition,
(iii) The Company may sell the stock or assets of any Consolidated
Subsidiary if such sale or other disposition is determined by
the board of directors of the Company to be in the best
interests of the Company and such sale is for a consideration
which represents the fair value (as determined in good faith
by the board of directors of the Company) thereof at the time
of such sale of such stock or assets,
(iv) The Company may merge with any other corporation, provided
that the Company shall be the surviving corporation,
(v) The Company or any Consolidated Subsidiary may sell all or any
part of the assets of any of its divisions or operations if
such sale or other disposition is determined by the board of
directors of the Company and/or such Consolidated Subsidiary,
as the case may be, to be in the best interests of the Company
and/or such Consolidated Subsidiary, as the case may be, and
such sale is for a consideration which represents the fair
value (as determined in good faith by the board of directors
of the Company) thereof at the time of such sale or other
disposition of such assets,
(vi) The Company or any Subsidiary may sell or transfer all or any
part of the assets of any of its divisions or operations to
any Subsidiary.
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In the event there occurs a Change in Control of the Company, the
Commitments of the Banks will immediately terminate. For purposes of this
paragraph, a "Change of Control" shall occur if:
(a) there shall be consummated (i) any consolidation or
merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of the Company's common stock would be converted into
cash, securities or other property, other than a merger of the
Company in which the holders of the Company's common stock
immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (ii) any sale,
lease, exchange or transfer (in one transaction or a series of
related transactions) of fifty percent (50%) or more of the
assets or earning power of the Company;
(b) any "person" (as such term is used in Sections as
13(d) and 14(d)(2) of the Exchange Act, as amended, other than
the Company or any employee benefit or stock ownership plan
sponsored by the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such Plan, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifteen percent (15%)
or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from rights
accruing in special circumstances) having the right to vote in
the election of directors, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases
or otherwise; or
(c) during any period of two (2) consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Company and any new director
whose election by such Board Directors or nomination for
election by the Company's shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof.
Notwithstanding subparagraph (a) through (c) above,
with respect to the transactions set forth in subparagraphs
(a) and (b) above, a Change of Control shall not be deemed to
have occurred if any such transaction (i) is approved by a
vote of at least two-thirds (2/3) of the directors and (ii)
at the time of such vote, at least two-thirds (2/3) of the
directors then in office were members of the Board of
Directors of the Company immediately prior to such
transaction.
SECTION 6.6. NOTICE. Until the Termination Date, the Company will cause
its treasurer, or in his absence another representative of the Company
designated by the treasurer, to promptly notify the Banks and the
Administrative Agent whenever any Material Possible Default may occur or
any warranty made in Article IV hereof or elsewhere in this Agreement or in
any Related Writing may for any reason cease in any Material respect to be
true and complete.
SECTION 6.7. LIENS. The Company will not and will not permit any
Consolidated Subsidiary to create, assume or suffer to exist any lien upon
any of its property or assets (hereinafter "Properties") whether now owned
or hereafter acquired without effectively providing that any
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borrowings under this Agreement shall be secured equally and ratably with
all other indebtedness thereby secured; provided that this Section shall
not apply to the following:
(i) liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings,
(ii) other liens incidental to the conduct of its business or the
ownership of its Properties which were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of its Properties or
materially impair the use thereof in the operation of its
business,
(iii) liens on Properties of a Consolidated Subsidiary to secure
obligations of such Consolidated Subsidiary to the Company or
another Consolidated Subsidiary,
(iv) liens on Properties of the Company and/or its Consolidated
Subsidiaries existing on the date hereof,
(v) any lien existing on any Properties of any corporation at the
time it becomes a Consolidated Subsidiary, existing prior to
the time of acquisition upon any Properties acquired by the
Company or any Consolidated Subsidiary through purchase,
merger, consolidation or otherwise, whether or not assumed by
the Company or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real property
(hereinafter in this subparagraph (vi) "Asset") at the time of
acquisition by the Company or any Consolidated Subsidiary to
secure all or a portion of [or to secure indebtedness incurred
prior to, at the time of, or (in the case of any Asset
acquired with the intent to obtain subsequent financing
thereof secured by a lien) within one (1) year after the
acquisition of such Asset for the purpose of financing all or
a portion of] the purchase price thereof, provided that any
such lien shall not encumber any other Properties of the
Company or such Consolidated Subsidiary,
(vii) any lien placed upon any real property now owned or hereafter
acquired by the Company or any of its Subsidiaries securing
indebtedness in an amount up to eighty percent (80%) of the
fair market value of such real property,
(viii) liens in favor of the United States of America or any
department or agency thereof, or in favor of any state
government or political subdivision thereof, or in favor of a
prime contractor under a government contract of the United
States, or of any state government or any political
subdivision thereof, and, in each case, resulting from
acceptance of partial, progress, advance or other payments in
the ordinary course of business under government contracts of
the United States, or of any state government or any political
subdivision thereof, or subcontracts thereunder,
(ix) liens created, assumed or existing in connection with a
tax-free financing,
(x) any lien renewing, extending or refunding any lien permitted
by clauses (iv), (v), (vi), (vii), (viii) and (ix) above,
provided that the principal amount secured is not materially
increased, and the lien is not extended to other Properties,
and
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(xi) liens other than those permitted by clauses (i) through (x)
above, provided that the aggregate amount of all indebtedness
secured by liens permitted by this clause (xi) shall not at
any time exceed fifteen percent (15%) of Consolidated Net
Worth.
SECTION 6.8. ERISA COMPLIANCE. Neither the Company nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency within
the meaning of the ERISA and the regulations thereunder, or any Material
liability to the Pension Benefit Guaranty Corporation or any successor
thereto in connection with any Plan. The Company will furnish to the
Banks as soon as possible and in any event within thirty (30) days after
the Company or such Consolidated Subsidiary knows or has reason to know
that any Material Reportable Event with respect to any Plan has occurred a
statement of the chief financial officer of the Company or such
Consolidated Subsidiary setting forth details as to such Reportable Event
and the action which the Company or such Consolidated Subsidiary proposes
to take with respect thereto, together with a copy of the notice of such
Reportable Event given to the Pension Benefit Guaranty Corporation if a
copy of such notice is available to the Company or such Consolidated
Subsidiary.
SECTION 6.9. NOTICE OF DEFAULT. The Company will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to each Bank and
the Administrative Agent of the occurrence of any Possible Default and of
any other development, financial or otherwise, with respect to which
there is a significant probability of a Material adverse impact on
Consolidated Net Worth or on the Company's ability to repay the Notes.
SECTION 6.10. CONDUCT OF BUSINESS. The Company will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in
substantially the same manner as it is presently conducted and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
SECTION 6.11. TAXES. The Company will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental charges
and levies upon it or its income, profits or property, except those which
are being contested in good faith by appropriate proceedings.
SECTION 6.12. ENVIRONMENTAL. The Company will use its best good faith
efforts to comply and to cause each Subsidiary to comply with all such laws
and regulations (other than laws and regulations the validity or
applicability of which are being contested by the Company or a Subsidiary,
as the case may be, in good faith by appropriate proceedings diligently
prosecuted) which may be legally imposed in the future in jurisdictions in
which the Company or any Subsidiary may then be doing business.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default:
SECTION 7.1. NON-PAYMENT OF NOTES, INTEREST OR FACILITY FEE. If the
principal on any Note shall not be paid in full when due and payable and
shall remain unpaid for a period of three (3) consecutive business days
and/or any interest due on any Note or any Facility Fee shall not be paid
within five (5) business days after written notice thereof to the Company
from the Bank (or Administrative Agent) to whom such amount(s) are owed.
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SECTION 7.2. COVENANTS. If the Company shall fail or omit to perform and
observe any agreement or other provision (other than those referenced in
Section 7.1 hereof) contained or referred to in this Agreement or in any
Related Writing that is on the Company's part to be complied with, and such
failure or omission, if not fully corrected within thirty (30) days after
the giving of written notice thereof to the Company by any Bank that such
failure or omission would have or reasonably could have a Material adverse
impact on the financial condition of the Company and the Consolidated
Subsidiaries, taken as a whole (provided, however, that the financial
covenant in Section 6.3 shall be applied without regard to any materiality
standard).
SECTION 7.3. WARRANTIES. If any representation, warranty or statement made
in or pursuant to this Agreement or any Related Writing or any other
information furnished by the Company to the Banks or any other holder of
any Note, shall be false or erroneous in any respect which would have or
reasonably could have a Material adverse impact on the financial condition
of the Company and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.4. CROSS DEFAULT. If the Company or any of its Consolidated
Subsidiaries (i) default in the payment of principal or interest due and
owing upon any other Material obligation for borrowed money beyond any
period of grace provided with respect thereto or (ii) default in the
performance of any other agreement, term or condition contained in any
agreement under which such obligation is created, and any such default is
not waived by the holders of such agreement or instrument, and if the
effect of such unwaived default would (a) accelerate the maturity of such
indebtedness or permit the holder thereof to cause such indebtedness to
become due prior to its stated maturity and (b) have or reasonably could
have a Material adverse impact on the financial condition of the Company
and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If the
Company or a Consolidated Subsidiary representing in excess of ten percent
(10%) of total consolidated assets of the Company and the Consolidated
Subsidiaries shall (i) discontinue business (except as permitted under
Section 6.5 hereof) or (ii) generally not pay (or admit in writing its
inability to pay) its debts as such debts become due, or (iii) make a
general assignment for the benefit of creditors, or (iv) apply for or
consent to the appointment of a receiver, a custodian, a trustee, an
interim trustee or a liquidator of all or a substantial part of its assets,
or (v) be adjudicated an insolvent debtor or have entered against it an
order for relief under Title 11 of the United States Code, as the same may
be amended from to time to time, or (vi) file a voluntary petition in
bankruptcy or file a petition or an answer seeking reorganization or an
arrangement with creditors or seeking to take advantage of any other law
(whether federal or state) relating to relief of debtors, or admit (by
answer, by default or otherwise) the substantive allegations of a petition
filed against it in any bankruptcy, reorganization, insolvency or other
comparable proceeding (whether federal or state) relating to relief of
debtors, or (vii) suffer or permit to continue unstayed and in effect for
sixty (60) consecutive days any judgment, decree or order entered by a
court of competent jurisdiction, which approves a petition seeking its
reorganization or appoints a receiver, custodian, trustee, interim trustee
or liquidator of all or a substantial part of its assets.
ARTICLE VIII. EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. If any Event of Default
described in Section 7.5 hereof shall occur, the Commitments (if they have
not already been terminated) shall immediately terminate and all Notes
shall automatically become immediately due and payable, without notice. If
any other Event of Default shall occur and shall not have been remedied
within
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an allowable time period referred to in this Agreement, then the Majority
Banks may terminate the Commitments (if they have not already been
terminated) and the Outstanding Majority Banks may declare that all Notes
shall become immediately due and payable. The Majority Banks and the
Outstanding Majority Banks shall promptly notify the Company in writing
of any such declaration. The effect as an Event of Default of any event
described in Section 7.1 or 7.5 hereof may be waived only by the written
concurrence of the holders of one hundred percent (100%) of the aggregate
unpaid principal amount of the Notes. The effect as an Event of Default
of any other event described in Sections 7.2, 7.3 or 7.4 may be waived
by the holders of fifty-one percent (51%) by amount of the Commitments.
ARTICLE IX. THE ADMINISTRATIVE AGENT
The Banks hereby authorize Bank of America National Trust and Savings
Association ("BOA") and BOA hereby agrees to act as Administrative Agent
for the Banks in respect of this Agreement upon the terms and conditions
set forth elsewhere in this Agreement, and upon the following terms and
conditions:
SECTION 9.1. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints and authorizes the Administrative Agent to exercise such powers
hereunder as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.
Notwithstanding anything in this Agreement to the contrary, or in a Related
Writing, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Bank. Neither the Administrative Agent nor any of its directors,
officers, attorneys or employees shall be liable for any action taken or
omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
SECTION 9.2. NOTE HOLDERS. The Administrative Agent may treat the payee of
any Note as the holder thereof until written notice of transfer shall have
been filed with it signed by such payee and in form satisfactory to the
Administrative Agent.
SECTION 9.3. CONSULTATION WITH COUNSEL. The Administrative Agent may
consult with legal counsel selected by it (including in-house counsel) and
shall not be liable for any reasonable action taken or suffered in good
faith by it in accordance with the written opinion of external counsel,
issued before such action is taken or suffered.
SECTION 9.4. DOCUMENTS. The Administrative Agent shall not be under a duty
to examine into or pass upon the validity, effectiveness, genuineness or
value of this Agreement, the Notes, any Related Writing furnished pursuant
hereto or in connection herewith or the value of any collateral obtained
hereunder, and the Administrative Agent shall be entitled to assume that
the same are valid, effective and genuine and what they purport to be.
SECTION 9.5. ADMINISTRATIVE AGENT AND AFFILIATES. With respect to the
Loans made hereunder, the Administrative Agent shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Company or any Subsidiary or affiliate of the
Company.
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SECTION 9.6. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed
that the Administrative Agent shall be entitled to assume that no Possible
Default has occurred and is continuing, unless the Administrative Agent has
actual knowledge of such fact or has been notified by a Bank that such Bank
considers that a Possible Default has occurred and is continuing and
specifying the nature thereof.
SECTION 9.7. ACTION BY ADMINISTRATIVE AGENT. So long as the Administrative
Agent shall be entitled, pursuant to Section 9.6 hereof, to assume that no
Possible Default shall have occurred and be continuing, the Administrative
Agent shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights which may be vested in it by, or with
respect to taking or refraining from taking any action or actions which it
may be able to take under or in respect of, this Agreement. The
Administrative Agent shall incur no liability under or in respect of this
Agreement by action upon any notice, certificate, warranty or other paper
or instrument reasonably believed by it to be genuine or authentic or to be
signed by the proper party or parties, or with respect to anything which it
may do or refrain from doing in the reasonable exercise of its judgment, or
which the Administrative Agent reasonably believes to be necessary or
desirable in the premises.
SECTION 9.8. INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Company), ratably
according to the respective principal amounts of their Commitments from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs (including reasonable external counsel
costs), expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative
Agent in any action taken or omitted by the Administrative Agent with
respect to this Agreement, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent's gross negligence or willful misconduct or from
any action taken or omitted by the Administrative Agent in any capacity
other than as agent under this Agreement.
SECTION 9.9. SUCCESSOR. The Company may select a successor or alternate
Administrative Agent with the approval of the holders of fifty-one percent
(51%) by amount of the Commitments.
ARTICLE X. MISCELLANEOUS
SECTION 10.1. BANKS' INDEPENDENT INVESTIGATION. Each Bank by its signature
to this Agreement acknowledges and agrees that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Company and any Subsidiary in
connection with the extension of credit hereunder, and agrees that no other
Bank nor the Administrative Agent has any duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or
other information with respect thereto whether coming into its possession
before the making of the first Loans or at any time or times thereafter.
SECTION 10.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of
dealing on the part of any Bank or the holder of any Note in exercising any
right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The remedies herein provided
are cumulative and in addition to any other rights, powers or privileges
held by operation of law, by contract or otherwise.
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SECTION 10.3. AMENDMENTS. Except as otherwise specifically provided herein,
no amendment, modification, termination, or waiver of any provision of
this Agreement or of the Notes, nor consent to any variance therefrom,
shall be effective unless the same shall be in writing and signed by the
Company and the Majority Banks and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
The unanimous consent of the Banks, shall be required with respect to
(i) the change of maturity of the Notes, or the payment date of interest
thereunder, (ii) any change in the rate of interest on such Notes, or in
the rate at which the Facility Fee referred to in Section 2.3 hereof shall
be calculated or in any amount of principal or interest due on any Note, or
in the manner of pro rata application of any payments made by the Company
to the Banks hereunder, (iii) any change in any percentage voting
requirement in this Agreement, (iv) any change in any date specified in
this Agreement for the payment of principal or interest on any Note or for
the payment of any Facility Fee hereunder, (v) any increase in any Bank's
Commitment or Percentage, except pursuant to Section 2.5(iii) hereof, or
any increase in the aggregate of all of the Banks' Commitments hereunder or
(vi) any change to this Section 10.3. No amendments to the duties or
responsibilities of the Administrative Agent may be made without the prior
written consent of the Administrative Agent except provided in Section 9.9
hereof.
Notice of amendments or consents ratified by the Banks hereunder shall
immediately be forwarded by the Company to all Banks. Each Bank or other
holder of a Note shall be bound by any amendment, waiver or consent
obtained as authorized by this Section, regardless of its failure to agree
thereto.
SECTION 10.4. CONFIDENTIALITY. Unless the Company otherwise agrees in
writing, each Bank hereby agrees to keep all Proprietary Information
(as defined below) confidential and not to disclose or reveal any
Proprietary Information to any person or entity other than the Bank's
directors, officers, employees, affiliates, and agents, and then only on a
confidential need-to-know basis; provided, however that a Bank may disclose
Proprietary Information (a) as required by law, rule, regulation, or
judicial process, (b) to its attorneys and accountants, (c) as requested or
required by a state, federal, or foreign authority or examiner regulating
banks or banking, or (d) to actual or potential assignees or participants
as permitted by Section 10.9 hereof who agree to be bound by the provisions
of this Section. For purposes of this Agreement, the term "Proprietary
Information" shall include all information about the Company, any
Subsidiary, or any of their respective affiliates which has been furnished
by the Company, any Subsidiary, or any of their respective affiliates,
whether furnished before or after the date hereof, and regardless of the
manner furnished; provided, however, that Proprietary Information shall not
include information which (x) is or becomes generally available to the
public other than as a result of a disclosure by a Bank not permitted by
this Agreement, (y) was available to a Bank on a nonconfidential basis
prior to its disclosure to such Bank by the Company, any Subsidiary, or any
of their respective affiliates, or (z) becomes available to a Bank on a
nonconfidential basis from a person and/or entity other than the Company,
any Subsidiary, or any of their respective affiliates who, to the best
knowledge of such Bank, is not otherwise bound by a confidentiality
agreement with the Company, any Subsidiary, or any of their respective
affiliates, or, to the best knowledge of such Bank, is not otherwise
prohibited from transmitting the information to such Bank.
SECTION 10.5. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to
the Company or a Subsidiary, mailed or delivered to it, addressed to it at
the address of the Company herein specified, and if to a Bank, mailed or
delivered to it, addressed to the address of such Bank specified on its
signature page to this
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Agreement. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or made
when received.
SECTION 10.6. COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses (including reasonable legal
fees for outside counsel) of the Banks incurred directly as a result
of the enforcement of this Agreement, the Notes and the other instruments
and documents in connection herewith.
SECTION 10.7. OBLIGATIONS SEVERAL. The obligations of the Banks hereunder
are several and not joint. Nothing contained in this Agreement and no
action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks as a partnership, association, joint venture or other entity. No
default by any Bank hereunder shall excuse the other Banks from any
obligation under this Agreement; but no Bank shall have or acquire any
additional obligation of any kind by reason of such default.
SECTION 10.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and when taken together shall constitute one and the
same agreement.
SECTION 10.9. ASSIGNMENTS AND PARTICIPATIONS.
A. ASSIGNMENTS. Unless the Company otherwise consents in writing, which
consent shall not be unreasonably withheld, no payee or other party in
possession of any Note (including any Bank) shall assign or transfer
any Note or any interest therein to any other person or entity, except
as otherwise permitted under this Section, or negotiate any Note, as
such term is defined in Ohio Revised Code Chapter 1303. Except as
otherwise expressly agreed in writing by the Company, no Bank shall,
by reason of the assignment or transfer of any Note or otherwise, be
relieved of any of its obligations hereunder. Each transferee of any
Note shall take such Note subject to the provisions of this Agreement
and to any request made, waiver or consent given, or other action
taken hereunder, prior to such transfer, by each previous holder of
such Note; and the Company shall be entitled to conclusively assume
that the transferee shall thereafter be vested with all rights and
powers under this Agreement of the Bank named as the payee of the Note
which is the subject of such transfer. Nothing herein shall prohibit
any Bank from pledging or assigning any Note to any Federal Reserve
Bank of the United States pursuant to applicable law. No party in
possession of a Note shall be a "Holder" as such term is defined in
Ohio Revised Code Chapter 1303. Notwithstanding any provision of this
Section 10.9 to the contrary, the Company may not assign or transfer
any of its rights or obligations hereunder without the consent of the
holders of one hundred percent (100%) by amount of the Commitments.
B. PARTICIPATIONS. Any Bank may grant participations in or to all or any
part of any Loan or Loans then owing to such Bank hereunder and the
Notes held by such Bank without the consent of the Company which
consent shall not be unreasonably withheld. Except as otherwise
expressly agreed in writing by the Company, no grant of a
participation shall relieve any Bank of its obligations hereunder.
The Company shall be entitled to deal
30
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solely with the Banks (and their respective assignees) for all
purposes of this Agreement and the Notes, and no holder of a
participation in all or any part of the Loans or the Notes shall have
any rights under this Agreement and shall not be a Holder of any Note,
as such term is defined in Ohio Revised Code Chapter 1303.
C. DISCLOSURE OF INFORMATION. The Company hereby consents to the
disclosure of any information obtained in connection herewith by any
Bank to any entity which is an assignee or potential assignee or a
participant or potential participant pursuant to Section 10.9A or
10.9B hereof, it being understood that such Bank shall advise any such
actual or potential assignee or participant of its obligation to keep
confidential any nonpublic information disclosed to it pursuant to
this Section 10.9 and, prior to the disclosure of such information,
shall cause each such actual or potential assignee or participant to
execute a confidentiality agreement containing the confidentiality
provisions set forth in Section 10.4 hereof.
D. SECURITIES LAWS. Each Bank represents that it is the present
intention of such Bank to acquire each Note drawn to its order for its
own account and not with a view to the distribution or sale thereof.
SECTION 10.10. TAX FORMS. With respect to each Bank which is organized under
the laws of a jurisdiction outside the United States, on the date of any
borrowing, (which claims, exemption from, or reduction of, United States
withholding tax under Sections 1441 or 1442 of the Internal Revenue Code of
1986, as amended) and from time to time thereafter if requested by the
Company or the Administrative Agent, each such Bank shall provide the
Administrative Agent and the Company with the forms prescribed by the
Internal Revenue Service of the United States certifying as to such Bank's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to such Bank hereunder or
other documents satisfactory to the Company and the Administrative Agent
indicating that all payments to be made to such Bank hereunder are subject
to such tax at a rate reduced by an applicable tax treaty. Unless the
Company and the Administrative Agent have received such forms and such
other documents reasonably requested by the Administrative Agent or the
Company indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Company or the Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Bank organized under the laws of a
jurisdiction outside the Unites States.
SECTION 10.11. ENTIRE AGREEMENT. This Agreement supersedes any prior
agreement or understanding of the parties hereto, and contains the entire
agreement of the parties hereto, with respect to the matters covered hereby.
SECTION 10.12. GOVERNING LAW. This Agreement, each of the Notes and any
Related Writing shall be governed by and construed in accordance with the
laws of the State of Ohio and the respective rights and obligations of the
Company and the Banks shall be governed by Ohio law.
SECTION 10.13. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
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SECTION 10.14. PRESS RELEASES. Neither the Administrative Agent nor any Bank
shall issue any press release regarding this Agreement without the prior
written consent of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date indicated above.
THE XXXXXXX-XXXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
XXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT-
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------
XXXXX X. XXXXXXXXXXX
Title: ASSISTANT SECRETARY AND
CORPORATE DIRECTOR OF TAXES
32
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CONSENT TO SERVE AS ADMINISTRATIVE AGENT
The undersigned authorized representative of Bank of America National
Trust and Savings Association hereby consents on behalf of Bank of America
National Trust and Savings Association to serve as Administrative Agent under
that certain 5-Year Revolving Credit Agreement dated August 31, 1995 by and
among The Xxxxxxx-Xxxxxxxx Company as Borrower, Bank of America National Trust
and Savings Association as Administrative Agent and the Banks named in such
Agreement.
BANK OF AMERICA NATIONAL TRUST
and SAVINGS ASSOCIATION
ADMINISTRATIVE AGENT
By: /s/ Xxxxx X.X. Xxxxxx
-----------------------------------
Title: XXXXX X.X. XXXXXX
VICE PRESIDENT
34
Amount of Percentage of
Commitment Commitments
---------- -----------
$28,571,428.57 11.4286% Trust Company Bank
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: XXXX X. XXXXXXX
Title: ASSISTANT VICE PRESIDENT
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT
Trust Company Bank
X.X. Xxx 0000, Xxxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
---------------------
Facsimile: (000) 000-0000
---------------------
35
Amount of Percentage of
Commitment Commitments
---------- -----------
$28,571,428.57 11.4286% Bank of America, Illinois
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: XXXX X. XXXXXXX
Title: VICE PRESIDENT
Bank of America, Illinois
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 312 - 000-0000
-------------------------
Facsimile: 312 - 987-0303
--------------------------
36
Amount of Percentage of
Commitment Commitments
---------- -----------
$25,000,000.00 10.0% National City Bank
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT AND
SENIOR LENDING OFFICER
National City Bank
Xxxxxxxx Xxxx Xxxxxx
Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
37
Amount of Percentage of
Commitment Commitments
---------- -----------
$25,000,000.00 10.0% Society National Bank
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: XXXXXXXX X. XXXX
Title: ASSISTANT VICE PRESIDENT
Society National Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 44ll4
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
------------------------------
38
Amount of Percentage of
Commitment Commitments
---------- -----------
$17,857,142.86 7.1429% First National Bank of Chicago
By: /s/ Xxxxxx X. Fast
----------------------------------
Name: XXXXXX X. FAST
Title: AUTHORIZED AGENT
First National Bank of Chicago
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
39
Amount of Percentage of
Commitment Commitments
---------- -----------
$17,857,142.86 7.1429% First Interstate Bank of California
By: /s/ Xxxxx X.X. Xxxxxxx
----------------------------------
Name: XXXXX X.X. XXXXXXX
Title ASSISTANT VICE PRESIDENT
First Interstate Bank of California
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
40
Amount of Percentage of
Commitment Commitments
---------- -----------
$17,857,142.86 7.1429% The Bank of Nova Scotia
By: /s/ F.C.H. Xxxxx
----------------------------------
Name: F.C.H. XXXXX
Title: SENIOR MANAGER LOAN OPERATIONS
The Bank of Nova Scotia
000 Xxxxxxxxx Xx. XX
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
41
Amount of Percentage of
Commitment Commitments
---------- -----------
$17,857,142.86 7.1429% Chemical Bank
By: /s/ X. Xxxxx
----------------------------------
Name: X. XXXXX
Title ASSISTANT MANAGER
Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 0-000-000-0000
-----------------------------
Facsimile: 0-000-000-0000
-----------------------------
42
Amount of Percentage of
Commitment Commitments
---------- -----------
$14,285,714.29 5.7143% NationsBank, N.A. (Carolinas)
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: XXXXXXX X. XXXXX
Title: VICE PRESIDENT
NationsBank, N.A. (Carolinas)
Corporate Bank
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
-----------------------------
43
Amount of Percentage of
Commitment Commitments
---------- -----------
$14,285,714.29 5.7143% Deutsche Bank AG
By: /s/ J. Xxxxx Xxxx
----------------------------------
Name: J. XXXXX XXXX
Title: VICE PRESIDENT
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: XXXX XXXXXXXX
Title: ASSISTANT VICE PRESIDENT
Deutsche Bank AG
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone:_____________________________
Facsimile:_____________________________
44
Amount of Percentage of
Commitment Commitments
---------- -----------
$14,285,714.28 5.7143% First Union National Bank of
North Carolina
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
First Union National Bank of
North Carolina
000 Xxxxx Xxxxxxx Xxxxxx
XX-00 Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
---------------------------
Xxxxxx Xxxx
Facsimile: (000) 000-0000
---------------------------
45
Amount of Percentage of
Commitment Commitments
---------- -----------
$14,285,714.28 5.7143% The Bank of New York
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: XXXXXX X. XXXXX
Title: VICE PRESIDENT
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (212) - 000-0000
-----------------------------
Facsimile: (212) - 635-6434
-----------------------------
46
Amount of Percentage of
Commitment Commitments
---------- -----------
$14,285,714.28 5.7143% ABN-AMRO Bank N.V.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name X.X. XXXX
Title: VICE PRESIDENT
By: /s/ Xxxxxxx X. Amoposo
----------------------------------
Name XXXXXXX X. AMOPOSO
Title: VICE PRESIDENT
ABN-AMRO Bank N.V.
Pittsburgh Branch
Xxx XXX Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
--------------------------
Facsimile: (000) 000-0000
--------------------------
