AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 12, 1995,
Amended and Restated as of July 31, 0000
Xxxxx
XXXXXXXX XXXXXXXXXXX,
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE FINANCIAL INSTITUTIONS PARTIES HERETO
Arranged By
BancAmerica SECURITIES, INC.
With
THE BANK OF NEW YORK
and
FIRST BANK NATIONAL ASSOCIATION,
as Co-Agents
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01 Defined Terms....................................... 1
1.02 Other Interpretive Provisions....................... 17
(a) Defined Terms.................................. 17
(b) The Agreement.................................. 18
1.03 Accounting Principles............................... 18
ARTICLE II
THE CREDITS
2.01 Amount and Terms of Commitments..................... 19
(a) The Committed Loans............................ 19
(b) The Letters of Credit.......................... 19
(c) Participation; Old Letters of Credit........... 19
2.02 Loan Accounts....................................... 20
2.03 Procedure for Committed Borrowings.................. 20
2.04 Letter of Credit Requests........................... 21
2.05 Extension of Letters of Credit...................... 22
2.06 Conversion and Continuation Elections for
Committed Borrowings................................ 22
2.07 Bid Borrowings...................................... 23
2.08 Procedure for Bid Borrowings........................ 24
2.09 Voluntary Termination or Reduction of Commitments... 27
2.10 Optional Prepayments................................ 27
2.11 Repayment........................................... 28
2.12 Repayment of Letter of Credit Drawings.............. 28
2.13 Default in Reimbursement of Issuing Bank............ 29
2.14 Interest............................................ 30
2.15 Fees................................................ 30
(a) Fees Payable to BofA and the Agent............. 30
(b) Commitment Fees................................ 30
(c) Letter of Credit Fees.......................... 31
(d) Fees under the Existing Company Credit
Agreement...................................... 32
2.16 Computation of Fees and Interest.................... 32
2.17 Payments by the Company............................. 32
2.18 Payments by the Banks to the Agent.................. 33
2.19 Sharing of Payments, Etc............................ 33
2.20 Pro Rata Treatment. ............................... 34
2.21 Increase of Commitments............................. 34
i
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes............................................... 35
3.02 Illegality.......................................... 36
3.03 Increased Costs and Reduction of Return............. 37
3.04 Funding Losses...................................... 38
3.05 Inability to Determine Rates........................ 39
3.06 Substitution of Banks............................... 39
3.07 Survival............................................ 39
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions to Effectiveness and Initial Advances
of Loans and Issuances of Letters of Credit......... 39
(a) Credit Agreement............................... 39
(b) Resolutions; Incumbency........................ 40
(c) Organization Documents; Good Standing.......... 40
(d) Legal Opinion.................................. 40
(e) Certificate.................................... 40
(f) Payment of Fees and Expenses................... 41
(e) Existing Indebtedness.......................... 41
(h) Indebtedness................................... 41
(i) Approvals and Consents......................... 41
(j) Other Documents................................ 41
4.02 Conditions to All Credit Extensions................. 41
(a) Notice of Borrowing or Continuation/Conversion. 41
(b) Notice of Acceptance........................... 41
(c) Letter of Credit Request....................... 41
(d) Continuation of Representations and Warranties. 41
(e) No Existing Default............................ 42
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence and Power....................... 42
5.02 Corporate Authorization; No Contravention........... 43
5.03 Governmental Authorization.......................... 43
5.04 Binding Effect...................................... 43
5.05 Litigation.......................................... 43
5.06 No Default.......................................... 44
5.07 ERISA Compliance.................................... 44
5.08 Title to Properties................................. 44
5.09 Taxes............................................... 44
5.10 Financial Condition................................. 45
5.11 Environmental Matters............................... 45
ii
5.12 Regulated Entities.................................. 46
5.13 No Burdensome Restrictions.......................... 46
5.14 Solvency............................................ 46
5.15 Labor Relations..................................... 46
5.16 Copyrights, Patents, Trademarks and Licenses, etc... 46
5.17 Material Subsidiaries and Equity Investments........ 46
5.18 Insurance........................................... 46
5.19 Full Disclosure..................................... 47
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements................................ 47
6.02 Certificates; Other Information..................... 47
6.03 Notices............................................. 48
6.04 Preservation of Corporate Existence, Etc............ 49
6.05 Maintenance of Property............................. 50
6.06 Insurance........................................... 50
6.07 Payment of Obligations.............................. 50
6.08 Compliance with Laws................................ 50
6.09 Inspection of Property and Books and Records........ 51
6.10 Environmental Laws.................................. 51
6.11 Use of Proceeds..................................... 51
6.12 Further Assurances.................................. 51
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitation on Liens................................. 52
7.02 Mergers, Consolidations and Dispositions of Assets.. 53
7.03 Cash Investments; Minority Investments.............. 54
7.04 Indebtedness........................................ 55
7.05 Contingent Obligations.............................. 55
7.06 Use of Proceeds..................................... 55
7.07 Hostile Acquisitions................................ 55
7.08 Lease Obligations................................... 55
7.09 Interest Coverage Ratio............................. 55
7.10 Debt/Total Capitalization........................... 56
7.11 Change in Business.................................. 56
7.12 Accounting Changes.................................. 56
7.13 Contracts of Subsidiaries........................... 56
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default.................................... 56
(a) Non-Payment.................................... 56
iii
(b) Representation or Warranty..................... 56
(c) Specific Defaults.............................. 56
(d) Other Defaults................................. 57
(e) Cross-Default.................................. 57
(f) Insolvency; Voluntary Proceedings.............. 57
(g) Involuntary Proceedings........................ 57
(h) ERISA.......................................... 58
(i) Monetary Judgments............................. 58
(j) Ownership...................................... 58
8.02 Remedies............................................ 58
8.03 Rights Not Exclusive................................ 59
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization....................... 59
9.02 Delegation of Duties................................ 59
9.03 Liability of Agent.................................. 59
9.04 Reliance by Agent................................... 60
9.05 Notice of Default................................... 60
9.06 Credit Decision..................................... 60
9.07 Indemnification..................................... 61
9.08 Agent in Individual Capacity........................ 62
9.09 Successor Agent..................................... 62
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers............................. 62
10.02 Notices............................................ 63
10.03 No Waiver; Cumulative Remedies..................... 64
10.04 Costs and Expenses................................. 64
10.05 Indemnity.......................................... 64
(a) General Indemnity.............................. 64
(b) Survival; Defense.............................. 65
10.06 Marshalling; Payments Set Aside.................... 65
10.07 Successors and Assigns............................. 65
10.08 Assignments, Participations, etc................... 65
10.09 Set-off............................................ 67
10.10 Automatic Debits of Fees........................... 68
10.11 Notification of Addresses, Lending Offices, Etc.... 68
10.12 Counterparts....................................... 68
10.13 Severability....................................... 68
10.14 No Third Parties Benefited......................... 68
10.15 Time............................................... 68
10.16 GOVERNING LAW AND JURISDICTION..................... 69
10.17 WAIVER OF JURY TRIAL............................... 69
iv
10.18 Entire Agreement................................... 69
10.19 Interpretation..................................... 70
10.20 Term of Agreement.................................. 70
10.21 Foreign Currency Conversion........................ 70
v
SCHEDULES
Schedule 1.01 Old Letters of Credit
Schedule 2.01 Bank Commitments
Schedule 4.01 Other Indebtedness
Schedule 5.05 Litigation
Schedule 5.07 ERISA Disclosures
Schedule 5.10 Contingent Obligations
Schedule 5.11 Environmental Matters
Schedule 5.17 Subsidiaries and Material Subsidiaries
Schedule 5.17(A) Minority Investments
Schedule 7.02 Assets Permitted to be Disposed of as of the Closing Date
EXHIBITS
Exhibit A Compliance Certificate
Exhibit B Assignment Agreement
Exhibit C Invitation for Competitive Bids
Exhibit D Letter of Credit Application
Exhibit E Notice of Borrowing
Exhibit F Notice of Conversion/Continuation
Exhibit G Intentionally Left Blank
Exhibit H Competitive Bid Request
Exhibit I Competitive Bid
Exhibit J Opinion of Counsel to Company
Exhibit K Bid Loan Note
vi
CREDIT AGREEMENT
This CREDIT AGREEMENT was entered into as of December 12,
1995 and is amended and restated as of July 31, 1997 by and among
Ceridian Corporation, a Delaware corporation (the "Company"), the
several financial institutions from time to time parties to this
Agreement (collectively, the "Banks"; individually, a "Bank") and
Bank of America National Trust and Savings Association, as Agent
for the Banks. This Agreement amends and restates in its entirety
the Existing Company Credit Agreement (as defined herein).
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the Company, the Banks
and the Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined
elsewhere in this Agreement, the following terms have the
following meanings:
"Absolute Rate" has the meaning specified in
subsection 2.08(c).
"Absolute Rate Auction" means a solicitation of
Competitive Bids setting forth Absolute Rates pursuant to Section
2.08.
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute
Rate.
"Affected Bank" has the meaning specified in
Section 3.06.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person shall
be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership
interests, by contract or otherwise. Without limitation, any
director, executive officer or beneficial owner of 15% or more of
the voting equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person.
"Agent" means BofA in its capacity as agent for the
Banks hereunder, and any successor agent appointed pursuant to
Section 9.09..
"Agent-Related Persons" means BofA and any successor
1
agent arising under Section 9.09, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Agent's Payment Office" means the address for
payments set forth on the signature page hereto in relation to
the Agent or such other address as the Agent may from time to
time specify in accordance with Section 10.02.
"Aggregate Commitment" means the combined Commitments
of the Banks, in the initial amount of Two Hundred Fifty Million
Dollars ($250,000,000), as such amount may be reduced from time
to time pursuant to this Agreement.
"Aggregate Exposure" means at any time, the sum of (a)
the aggregate principal amount of outstanding Committed Loans and
Bid Loans, plus (b) the aggregate undrawn face amount of all
outstanding Letters of Credit, plus (c) the aggregate amount of
drawings made under Letters of Credit for which the applicable
Issuing Bank has not yet been reimbursed.
"Agreement" means this Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Applicable Commitment Fee Percentage," "Applicable
Financial L/C Percentage," "Applicable Margin" and "Applicable
Performance L/C Percentage" mean the percentages (the "Applicable
Percentages") specified in the table below after applying the
rules of application which immediately follow the table:
Company's Actual or Implied Senior Unsecured Long-Term Debt
Rating (S&P/Xxxxx'x):
Applicable Xxxxx X Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxx: A/A3 II III IV V VI
and BBB+/Ba BBB/Ba BBB- BB+/Ba BB/Ba2
Above a1 a2 /Baa3 1 and
below
Applicable 0.085% 0.090% 0.10% 0.125% 0.175% 0.25%
Commitment Fee
Percentage
Applicable 0.25% 0.275% 0.30% 0.35% 0.55% 0.75%
Financial L/C
Percentage
Applicable 0% 0% 0% 0% 0% 0%
Margin: Base
Rate Committed
Loans
Applicable 0.25% 0.275% 0.30% 0.35% 0.55% 0.75%
Margin:
Offshore Rate
Committed
Loans
Applicable 0.125% 0.1375% 0.15% 0.175% 0.275% 0.375%
Performance
L/C Percentage
where the following rules of application shall apply:
2
(a) the Company's senior unsecured long-term debt
rating as in effect on the last business day of any calendar
month shall be used to determine the Applicable Percentages
for the immediately succeeding calendar month;
(b) if at any time S&P and Xxxxx'x assign different
senior unsecured long- term debt ratings to the Company, the
Applicable Percentages shall be determined based on the
higher of such ratings if the lower of such ratings is not
more than one rating level lower than the higher, and shall
be determined based on the ratings level next lower than the
higher of such ratings if the lower of such ratings is two
ratings levels or more lower than the higher;
(c) if at any time only one Rating Agency assigns a
senior unsecured long- term debt rating to the Company, that
rating shall be used to determine the Applicable
Percentages;
(d) if at any time neither Rating Agency assigns a
senior unsecured long-term debt rating to the Company, but
either or both Rating Agencies rate the Company's preferred
stock, then the Applicable Percentages shall be determined
utilizing such preferred stock rating(s) in accordance with
the foregoing table and rules of applicability except that
each ratings level specified in the table for senior
unsecured long-term debt shall be adjusted two ratings
levels lower for application to the Company's preferred
stock;
(e) if at any time neither Rating Agency assigns a
senior unsecured long-term debt rating to the Company and
neither Rating Agency rates the Company's preferred stock,
then the Applicable Percentages shall be determined
utilizing Level V in the table above; and
(f) as of the Closing Date, the Applicable Percentages
shall be determined utilizing Level IV until adjusted as
provided herein.
"Arranger" means BancAmerica Securities, Inc.
"Assignee" is defined in subsection 10.08(a).
"Attorney Costs" means and includes all fees and
disbursements of any law firm or other external counsel, the non-
duplicative allocated cost of internal legal services and all
disbursements of internal counsel.
"Bank" (a) has the meaning specified in the
introductory clause hereto and (b) also includes any financial
institution becoming a party hereto by execution of an assignment
and acceptance agreement in accordance with Section 10.08.
"Bank Affiliate" means a Person engaged primarily in
the business of commercial banking and that is a Subsidiary of a
Bank or of a Person of which a Bank is a Subsidiary.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. S 101, et seq.).
3
"Base Rate" means the higher of:
(a) the rate of interest publicly announced from time
to time by BofA in San Francisco, California, as its
"reference rate." It is a rate set by BofA based upon
various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate; and
(b) 0.50% per annum above the latest Federal Funds
Rate.
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that
bears interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting
of one or more Bid Loans made to the Company on the same day by
one or more Banks.
"Bid Loan" means a Loan by a Bank to the Company under
Section 2.07, which may be an IBOR Bid Loan or an Absolute Rate
Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan,
the Bank making such Bid Loan to the Company.
"Bid Loan Note" has the meaning specified in Section
2.02.
"BofA" means Bank of America National Trust and
Savings Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of
Loans of the same Type and, other than in the case of Base Rate
Committed Loans, having the same Interest Period made to the
Company on the same day by the Banks under Article II, and may be
a Committed Borrowing or a Bid Borrowing.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.03 or 2.08, or any date on which a Letter
of Credit is issued under Section 2.04.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in Chicago, New
York City or San Francisco are authorized or required by law to
close and, if the applicable Business Day relates to any Offshore
Rate Loan, means such a day on which dealings are carried on in
the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not
having the force of law, in each case, regarding capital adequacy
of any bank or of any corporation controlling a bank.
4
"Capital Expenditures" means, for any period, the
aggregate of all capitalized software costs and all expenditures
by the Company and its Subsidiaries for the acquisition of fixed
or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such
period) as shown in the Company's consolidated statements of cash
flow for such period in accordance with GAAP.
"Capital Lease" has the meaning specified in the
definition of Capital Lease Obligations.
"Capital Lease Obligations" means all monetary
obligations of the Company or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease ("Capital Lease").
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof having maturities of not
more than six months from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time
deposits, repurchase agreements, reverse repurchase agreements, or
bankers' acceptances, having in each case a tenor of not more than six
months, issued by any Bank, or by any U.S. commercial or investment
bank or broker having combined capital and surplus of not less than
$100,000,000 whose short term securities are rated at least A-1 by S&P
and P-1 by Xxxxx'x; and
(c) commercial paper or promissory notes of an issuer rated at
least A-1 by S&P or P-1 by Xxxxx'x and in either case having a tenor of
not more than three months.
"Closing Date" means July 31, 1997.
"Code" the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder as from time to time in effect.
"Comdata" means Comdata Network, Inc., a Maryland corporation.
"Comdata Holdings" means Comdata Holdings Corporation, a Delaware
corporation.
"Commitment" means (a) as to each Bank executing this Agreement
on the Closing Date, its commitment to extend credit to the Company in the
amount set forth opposite its name on Schedule 2.01 (as such amount may be
reduced from time to time in accordance with Section 2.09 or Section 10.08)
and (b) as to each financial institution becoming a Bank hereunder pursuant
to Section 10.08, its commitment to extend credit in the amount agreed upon
5
in the assignment and acceptance agreement entered into by it in accordance
with Section 10.08.
"Commitment Percentage" means, as to any Bank, the percentage
derived by dividing such Bank's Commitment by the Aggregate Commitment.
"Committed Borrowing" means a Borrowing hereunder consisting of
Committed Loans made on the same day by the Banks ratably according to their
respective Commitment Percentages and, in the case of Offshore Rate
Committed Loans, having the same Interest Period.
"Committed Loan" means a Loan by a Bank to the Company under
subsection 2.01(a), and may be an Offshore Rate Committed Loan or a Base
Rate Committed Loan (each, a "Type" of Committed Loan).
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
accordance with subsection 2.08(b).
"Competitive Bid Request" is defined in subsection 2.08(a).
"Compliance Certificate" means a certificate delivered to the
Agent by the Company pursuant to subsection 6.02(a), substantially in the
form of Exhibit A attached hereto.
"Consolidated Indebtedness" means, at any time, all amounts which
would, in accordance with GAAP, be included as Indebtedness on a
consolidated balance sheet of the Company and its Subsidiaries as of such
time.
"Consolidated Interest Expense" means, for any period, gross
consolidated interest expense for such period (including all commissions,
discounts, fees and other charges in connection with Letters of Credit) for
the Company and its Subsidiaries.
"Consolidated Net Income (Loss)" means, for any period, all
amounts which would, in accordance with GAAP, be included in net income
(loss) on the consolidated income statement of the Company and its
Subsidiaries for such period.
"Consolidated Net Worth" means, at any time, with respect to the
Company and its Subsidiaries, shareholders' equity on the date of
determination as determined in accordance with GAAP (except that the effects
of direct charges or credits to shareholders' equity related to accounting
for pensions ("FAS 87") and foreign currency translation ("FAS 52") are to
be disregarded).
"Consolidated Total Assets" means, at any time, the total
consolidated assets of the Company and its Subsidiaries measured as of the
last day of the fiscal quarter ending on or before the date of
determination, as determined in accordance with GAAP.
"Contingent Obligation" means, as to the Company or any of its
Subsidiaries, (a) any Guaranty Obligation of that Person; (b) any
reimbursement obligation of that Person with respect to a standby letter of
credit, surety bond, banker's acceptance or similar instrument; (c) any
obligation of that Person to purchase any materials, supplies or other
6
property from, or to obtain the services of, another Person (other than the
Company or one of its Subsidiaries) if the relevant contract or other
related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless
of whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered; and (d)
all Indebtedness (other than that of the Company or any of its Subsidiaries)
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by the Company or any such
Subsidiary; but in all events excluding obligations of the type described in
clauses (a) through (d) above to the extent that reserves or liabilities
have been established therefor in the Company's consolidated financial
statements.
"Contractual Obligations" means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
property is bound.
"Conversion Date" means any date on which the Company elects to
convert a Base Rate Committed Loan to an Offshore Rate Committed Loan or to
convert an Offshore Rate Committed Loan to a Base Rate Committed Loan.
"Credit Extension" means a Borrowing, a continuance or conversion
of Loans or the issuance of or purchase of a participation under subsection
2.01(c) in a Letter of Credit.
"Credit Extension Date" means the date on which a Credit
Extension is made.
"Default" means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to each Bank, the
office of that Bank designated as such in the signature pages hereto or such
other office of the Bank as it may from time to time specify to the Company
and the Agent.
"EBIT" means, for any period, for the Company and its
Subsidiaries determined in accordance with GAAP, the sum of (a) Consolidated
Net Income (Loss), plus (b) Consolidated Interest Expense, plus (c)
provision for income taxes to the extent included in the determination of
Consolidated Net Income (Loss), and minus (d) interest income, all
determined on a consolidated basis for the Company and its Subsidiaries;
provided, however, that Consolidated Net Income (Loss) shall be computed for
these purposes without giving effect to extraordinary losses or gains or
losses or gains from discontinued operations.
"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
7
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting through
a branch or agency located in the United States; and (c) any Bank Affiliate.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon (a) the alleged or actual presence,
placement, migration, spillage, leakage, disposal, discharge, emission or
release of any Hazardous Material at, in, or from property, whether or not
owned by the Company, or (b) any other circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations, registration requirements and permits of, and
agreements with, any Governmental Authorities, in each case relating to
environmental and land use matters or health and safety matters involving
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder as
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which would reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
8
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Company Credit Agreement" means that certain Credit
Agreement dated as of December 12, 1995 by and among the Company, BofA, as
Agent, and the financial institutions parties thereto.
"Extension" is defined in Section 2.05.
"Extension Refusal Date" is defined in Section 2.05.
"Federal Funds Rate" means, 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 Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the
"Composite 3:30 p.m. Quotation") for such day under the caption "Federal
Funds Effective Rate". If on any relevant day the appropriate rate for such
previous day is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the rate for such day will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Financial L/C" means, with respect to any Letter of Credit, a
"financial standby letter of credit" as such term is defined in the Adequacy
Guidelines For Bank Holding Companies: Risk-Based Measure, 12 C.F.R. Part
225, Appendix A, III.D (1993) and as the definition of such term may be
amended from time to time prior to issuance of any such Letter of Credit.
Such term is described in the 1993 Code of Federal Regulations as
"irrevocable obligations of the banking organization to pay a third-party
beneficiary when a customer (account party) fails to repay an outstanding
loan or debt instrument (direct credit substitute)."
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), or in such other statements by
such other entity as may be in general use by significant segments of the
U.S. accounting profession, which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any
9
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty Obligation" means, as applied to the Company or any of
its Subsidiaries, any agreement of the Company or any such Subsidiary to
guarantee the Indebtedness of a Person other than the Company or any of its
Subsidiaries (the "primary obligor"), or any obligation or undertaking of
the Company or any such Subsidiary which, in economic effect, is
substantially equivalent to a guarantee of the primary obligor's
Indebtedness ("primary obligations"), including any obligation of the
Company or any such Subsidiary, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance or
provide funds (i) for the payment or discharge of any such primary
obligation, or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, or (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
or (d) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, hazardous chemicals, special waste, hazardous substance,
hazardous material, regulated substance, or toxic substance, or petroleum or
petroleum derived substance or waste.
"IBOR Auction" means a solicitation of Competitive Bids setting
forth an IBOR Bid Margin pursuant to Section 2.08.
"IBOR Bid Loan" means any Bid Loan that bears interest at a rate
based upon the IBO Rate.
"IBOR Bid Margin" has the meaning specified in subsection
2.08(c)(ii)(C).
"IBO Rate" has the meaning specified in the definition of
"Offshore Rate".
"Increase Date" has the meaning specified in Section 2.21.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the Ordinary Course of Business pursuant to
ordinary terms); (c) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses; (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of
the seller or bank under such agreement in the event of default are limited
to repossession or sale of such property); and (e) all Capital Lease
10
Obligations. Indebtedness owed to the Company by its Subsidiaries, by one
Subsidiary to another or by the Company to a Subsidiary shall not constitute
Indebtedness.
"Indemnified Person" has the meaning specified in subsection
10.05(a).
"Indemnified Liabilities" has the meaning specified in subsection
10.05(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any court
or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion
of its creditors; in each case for clause (a) and (b) above, undertaken
under U.S. Federal, State or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means (a) as to any Base Rate Committed
Loan, the first Business Day of January, April, July and October, each date
on which such Committed Loan is converted into an Offshore Rate Committed
Loan, and the Termination Date; (b) as to any Offshore Rate Committed Loan,
the last day of each Interest Period applicable to such Loan and, if any
such Interest Period exceeds three months, the date that falls three months
after the beginning of such Interest Period; (c) as to any Absolute Rate Bid
Loan or any IBOR Bid Loan, the last day of each Interest Period applicable
to such Loan and any intervening dates prior to the maturity thereof as may
be specified by the Company and agreed to by the applicable Bid Loan Lender
in the applicable Competitive Bid.
"Interest Period" means, (a) as to any Offshore Rate Loan, the
period commencing on the Business Day such Loan is disbursed, or (in the
case of any Offshore Rate Committed Loan) on the Conversion Date on which
such Loan is converted into or continued as an Offshore Rate Committed Loan,
and ending on the date one, two, three or six months thereafter, as selected
by the Company in its Notice of Borrowing, Notice of Conversion/Continuation
or Competitive Bid Request, as the case may be; and (b) as to any Absolute
Rate Bid Loan, a period of not less than 14 days and not more than 365 days
as selected by the Company in the applicable Competitive Bid Request;
provided, however, that:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii)no Interest Period shall extend beyond the Termination
Date.
11
"Investment" of a Person means (i) the outstanding principal
amount of any loan, advance, extension of credit (other than loans, advances
or extensions of credit arising in the Ordinary Course of Business), or (ii)
the amount (measured by the amount of cash expended or the then-current fair
market value of other assets, including stock of such Person, utilized as
consideration) of any contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership or membership interests, notes, debentures or other securities
of any other Person made by such Person, reduced by the amount of any
distribution by such other Person constituting a return of capital, any
payment of principal on such notes, debentures or other debt securities, or
any proceeds from the sale of any equity or debt securities of such other
Person.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit C attached hereto.
"Issuing Bank" means, with respect to each Letter of Credit, BofA
(or any of its Affiliates) or such other Bank which may issue a Letter of
Credit.
"IRS" means the Internal Revenue Service or any entity succeeding
to any of its principal functions under the Code.
"Joint-Applicant" means, with respect to any Letter of Credit, a
Subsidiary of the Company which together with the Company signs a Letter of
Credit Application.
"Lending Office" means, with respect to any Bank, the office or
offices of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, opposite its name
on the applicable signature page hereto, or such other office or offices of
the Bank as it may from time to time notify the Company and the Agent in
writing.
"Letter of Credit" means (a) a standby letter of credit issued
under this Agreement by the Issuing Bank for the account of the Company and
(b) any Old Letter of Credit outstanding on the Closing Date, including an
Extension of any letter of credit.
"Letter of Credit Application" means a letter of credit
application and agreement in form and substance satisfactory to the Issuing
Bank. Attached hereto as Exhibit D is the initial form of Letter of Credit
Application.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or other security interest (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease Obligation and any financing
lease having substantially the same economic effect as any of the foregoing)
and any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an Operating Lease.
"Loan" means an extension of credit by a Bank to the Company
pursuant to Article II, and may be a Committed Loan or a Bid Loan.
12
"Loan Documents" means this Agreement, the Notes, the Letter of
Credit Applications, and all documents delivered to the Agent or any Bank in
connection herewith or therewith, as such instruments, agreements and
documents may be amended, supplemented, restated, modified or renewed from
time to time.
"Majority Banks" means (a) at any time prior to the Termination
Date, Banks then having 51% or more of the Commitments and (b) at all other
times, Banks then holding 51% or more of the then aggregate unpaid principal
amount of the Credit Extensions.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole or (b) a material adverse effect upon the
validity or enforceability against the Company of any of the Loan Documents.
"Material Subsidiary" means at any time any Subsidiary of the
Company the assets of which are 10% or more of Consolidated Total Assets (or
the equivalent thereof in another currency).
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes, is making, or is obligated to make contributions or, during
the preceding three calendar years, has made, or been obligated to make,
contributions.
"Notes" means the Bid Loan Notes.
"Notice of Borrowing" means a notice given by the Company to the
Agent pursuant to Section 2.03, in substantially the form of Exhibit E
attached hereto.
"Notice of Conversion/Continuation" means a notice given by the
Company to the Agent pursuant to Section 2.06, in substantially the form of
Exhibit F attached hereto.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's
office, central filing office or other Governmental Authority for the
purpose of evidencing, creating, perfecting or preserving the priority of a
Lien securing obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the Company
to any Bank, the Agent, or any other Person required to be indemnified under
any Loan Document, of any kind or nature, present or future, whether or not
evidenced by any note, guaranty or other instrument, arising under this
Agreement or under any other Loan Document, whether or not for the payment
of money, whether arising by reason of an extension of credit, the issuance
13
of a Letter of Credit, loan, guaranty, indemnification or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter
arising and however acquired.
"Offshore Lending Office" means with respect to each Bank, the
office of such Bank designated as such in the signature pages hereto or such
other office of such Bank as such Bank may from time to time specify to the
Company and the Agent.
"Offshore Rate" means, for each Interest Period in respect of
Offshore Rate Loans comprising part of the same Borrowing, an interest rate
per annum (rounded upward to the nearest 1/16th of 1%) determined pursuant
to the following formula:
Offshore Rate = IBO Rate
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means (a) with respect to
Offshore Rate Committed Loans, the maximum reserve percentage
(expressed as a decimal, rounded upward to the nearest 1/100th of 1%)
in effect on the date the IBO Rate for such Interest Period is
determined (whether or not applicable to any Bank) under regulations
issued from time to time by the Federal Reserve Board for determining
the maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities") having a
term comparable to such Interest Period; (b) with respect to IBOR Bid
Loans, 0%; and
"IBO Rate" means for any Interest Period with respect to an IBOR
Bid Loan or Offshore Rate Committed Loan, the rate of interest per
annum determined by the Agent as the rate of interest at which dollar
deposits in the approximate amount of, in the case of IBOR Bid Loans,
the IBOR Bid Loans to be borrowed in such Bid Loan Borrowing, and, in
the case of Offshore Rate Committed Loans, the Offshore Rate Committed
Loan to be made by BofA, and having a maturity comparable to such
Interest Period, would be offered by BofA's Grand Cayman Branch, Grand
Cayman B.W.I., to major banks in the offshore dollar interbank market
upon request of such banks at approximately 11:00 a.m. (New York City
time) two Business Days prior to the commencement of such Interest
Period.
The Offshore Rate shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed Loan that
bears interest based on the Offshore Rate.
"Offshore Rate Loan" means an IBOR Bid Loan or an Offshore Rate
Committed Loan.
14
"Old Letters of Credit" means letters of credit issued by BofA,
Bank of America Illinois or BankAmerica International under the Existing
Company Credit Agreement and outstanding on the Closing Date, all of which
are listed on Schedule 1.01 attached hereto.
"Operating Lease" means, as applied to any Person, any lease of
property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any
transaction involving the Company or any Subsidiary of the Company, the
ordinary course of such Person's business, as conducted by any such Person
in accordance with past practice and undertaken by such Person in good faith
and not for purposes of evading any covenant or restriction in any Loan
Document.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
designations or instrument relating to the rights of preferred shareholders
of such corporation, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" has the meaning specified in subsection 3.01(b).
"Participant" has the meaning specified in subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan, as defined in Section 3(2)
of ERISA, subject to Title IV of ERISA, which the Company or any ERISA
Affiliate sponsors or maintains, or to which the Company or any ERISA
Affiliate makes, is making, or is obligated to make contributions, or in the
case of a multiple employer plan, as described in Section 4064(a) of ERISA,
has made contributions at any time during the immediately preceding five
plan years; but excluding in all cases any Multiemployer Plan.
"Performance L/C" means, with respect to any Letter of Credit, a
"performance standby letter of credit" as such term is defined in the
Adequacy Guidelines For Bank Holding Companies: Risk-Based Measure, 12
C.F.R. Part 225, Appendix A, III.D (1993) as the definition of such term may
be amended from time to time prior to issuance of any such Letter of Credit.
Such term is described in the 1993 Code of Federal Regulations as
"irrevocable obligations of the banking organization to pay a third-party
beneficiary when a customer (account party) fails to perform some other
contractual non-financial obligation."
"Permitted Liens" is defined in Section 7.01.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3)
of ERISA, which the Company or any ERISA Affiliate sponsors or maintains, or
15
to which the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions, and includes any Pension Plan or
Multiemployer Plan.
"Purchase" means any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which the Company
or any of its Subsidiaries (a) acquires any ongoing business or all or
substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise, or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership or membership interests of a
partnership or limited liability company, respectively.
"Rate Contracts" means interest rate and currency swap
agreements, cap, floor and collar agreements, interest rate insurance,
currency spot and forward contracts and other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates.
"Rating Agency" means S&P and Moody's.
"Replacement Bank" has the meaning specified in Section 3.07.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA or the regulations promulgated thereunder, other than any
such event for which the 30- day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of any arbitrator or
of a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"Responsible Officer" means the chief executive officer, the
chief financial officer, the president, any executive vice president, the
controller or the treasurer of the Company.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Solvent" means, as to any Person at any time, that (a) the fair
value of the property of such Person is greater than the fair value of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for
purposes of Section 101(31) of the Bankruptcy Code and, in the alternative,
for purposes of the Uniform Fraudulent Conveyances Act (as enacted in the
State of Illinois); (b) the present fair saleable value of the property of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay its
16
debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably small capital.
"Stated Amount" means, with respect to any Letter of Credit, at
any date of determination thereof, the maximum aggregate amount available
for drawing thereunder plus the aggregate amount of all unreimbursed
payments and disbursements under such Letter of Credit.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"Taxes" has the meaning specified in subsection 3.01(a).
"Termination Date" means the earlier to occur of:
(a) July 31, 2002; and
(b) the date on which the Aggregate Commitment terminates in
accordance with Section 2.09 or Section 8.02.
"Transferee" has the meaning specified in subsection 10.08(e).
"Type" has the meaning specified in the definition of "Committed
Loan".
"UCC" means the Uniform Commercial Code as in effect in the State
of Illinois.
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital stock
of each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
1.02 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein,
all terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto.
The meaning of defined terms shall be equally applicable to the singular and
plural forms of the defined terms. Terms (including uncapitalized terms)
17
not otherwise defined herein and that are defined in the UCC shall have the
meanings therein described.
(b) The Agreement.
(iv) The words "hereof", "herein", "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; and subsection, section, schedule and exhibit references are
to this Agreement unless otherwise specified.
(v) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced. The term "including" is not limiting and
means "including without limitation". In the computation of periods of
time from a specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each mean "to
but excluding", and the word "through" means "to and including."
(vi) Unless otherwise expressly provided herein, (A)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent such
amendments and other modifications are not prohibited by the terms of
any Loan Document, and (B) references to any statute or regulation are
to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(vii) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(viii)This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their
terms. Unless otherwise expressly provided, any reference to any
action of the Agent or the Banks by way of consent, approval or waiver
shall be deemed modified by the phrase "in its/their sole discretion."
(ix) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the
Agent, the Company and the other parties, and are the products of all
parties. Accordingly, they shall not be construed against the Banks or
the Agent merely because of the Agent's or Banks' involvement in their
preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed in accordance with
GAAP as in effect from time to time, but all financial computations required
under this Agreement shall be made in accordance with GAAP as in effect and
applied by the Company on March 31, 1997, consistently applied, except to
18
the extent otherwise agreed upon by the parties hereto.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
ARTICLE II.
THE CREDITS
2.01 Amount and Terms of Commitments. Within the limits of each
Bank's Commitment, and subject to the other terms and conditions hereof, the
Company may borrow, repay and reborrow Loans and obtain the issuance of
Letters of Credit.
(a) The Committed Loans. From time to time on any Business Day
during the period from the Closing Date to the Termination Date, each Bank
severally agrees, on the terms and conditions hereinafter set forth, to make
Committed Loans to the Company in an aggregate outstanding amount not to
exceed at any time the amount of such Bank's Commitment Percentage of the
difference between (i) the Aggregate Commitment minus (ii) the sum of (A)
the aggregate principal amount of all outstanding Committed Loans and Bid
Loans, plus (B) the aggregate undrawn face amount of all outstanding Letters
of Credit and plus (C) the aggregate amount of drawings made under Letters
of Credit for which the applicable Issuing Bank has not yet been reimbursed.
(b) The Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, on any Business Day on or prior to the
Termination Date, to issue Letters of Credit for the account of the Company
and, if applicable, a Joint-Applicant, in a face amount not in excess at any
time of the Aggregate Commitment, minus the sum of (i) the aggregate
principal amount of all outstanding Loans, plus (ii) the aggregate undrawn
face amount of all outstanding Letters of Credit, plus (iii) the aggregate
amount of drawings made under Letters of Credit for which the applicable
Issuing Bank has not yet been reimbursed; provided, however, that (A) in no
event may the Stated Amount of Letters of Credit issued to support worker's
compensation obligations of the Company and its Subsidiaries exceed
$10,000,000 at any one time and (B) in no event may the aggregate Stated
Amount of all Letters of Credit outstanding exceed $75,000,000 at any time.
BofA may, at its option, fulfill its Commitment to issue Letters of Credit
by arranging for the issuance of Letters of Credit by an Affiliate of BofA.
Any Letter of Credit issued by an Affiliate of BofA shall be deemed to be
issued by BofA for the purpose of BofA's fulfilling its Commitment and
retaining a proportionate interest in Letters of Credit pursuant to
subsection (c) of this Section 2.01.
(c) Participation; Old Letters of Credit. Each Bank (other than
the Issuing Bank) agrees to purchase a participation (i) in each Letter of
Credit on the date of issuance of such Letter of Credit and (ii) in each
amendment increasing the face amount of a Letter of Credit after the
issuance thereof, on the date of such amendment, in an amount equal to its
Commitment Percentage. The Issuing Bank shall retain a proportionate
interest in the amount of its Commitment Percentage in each Letter of
Credit after such purchase of participations. With respect to Old Letters of
Credit, upon the effectiveness of this Agreement pursuant to Section 4.01,
19
each Bank (other than the Issuing Bank) shall be deemed to have purchased a
participation in the amount of its Commitment Percentage in such Old Letters
of Credit and such Old Letters of Credit shall be deemed to be Letters of
Credit existing under this Agreement.
2.02 Loan Accounts.
(a) The Committed Loans made by each Bank shall be evidenced by
one or more loan accounts or records maintained by such Bank in the ordinary
course of business. The loan accounts or records maintained by the Agent
and each Bank shall be conclusive absent manifest error of the amount of the
Committed Loans made by the Banks to the Company and the interest and
payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Committed Loans. At
the request of any Bank, the Company shall execute and deliver a promissory
note in form and substance satisfactory to the Company and such Bank to
reflect the Committed Loans evidenced by such loan accounts or records.
(b) The Bid Loans made by each Bank shall be evidenced by one or
more notes ("Bid Loan Notes"), in addition to the loan accounts referenced
in subsection 2.02(a). Each such Bank shall endorse on the schedules annexed
to its Bid Loan Note the date, amount and maturity of each Bid Loan made by
it and the amount of each payment of principal made by the Company with
respect thereto. Each such Bank is irrevocably authorized by the Company to
endorse its Bid Loan Note and each Bank's record shall be conclusive absent
manifest error; provided, however, that the failure of a Bank to make, or an
error in making, a notation thereon with respect to any Bid Loan shall not
limit or otherwise affect the obligations of the Company hereunder or under
any such Bid Loan Note to such Bank.
2.03 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice (or telephonic notice, promptly confirmed by a
writing) delivered to the Agent in the form of a Notice of Borrowing (which
notice must be received by the Agent prior to (i) 9:30 a.m. (Chicago time)
two Business Days prior to the requested Borrowing date, in the case of
Offshore Rate Committed Loans and (ii) 10:30 a.m. (Chicago time) on the same
Business Day of such proposed Borrowing, in the case of Base Rate Committed
Loans, specifying:
(1) the amount of the Committed Borrowing, which shall be in an
aggregate minimum principal amount of $5,000,000 or any multiple of
$1,000,000 in excess thereof;
(2) the requested Borrowing Date, which shall be a Business Day;
(3) whether the Committed Borrowing is to be comprised of
Offshore Rate Committed Loans or Base Rate Committed Loans; and
(4) the duration of the Interest Period applicable to such
Committed Loans included in such notice. If the Notice of Borrowing
fails to specify the duration of the Interest Period for any Committed
Borrowing, such Borrowing shall consist of Base Rate Committed Loans,
regardless of the type of Loans requested by the Company;
20
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof and of the amount of such Bank's
Commitment Percentage of the Committed Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage
of each Committed Borrowing available to the Agent for the account of the
Company at the Agent's Payment Office by 1:00 p.m. (Chicago time) on the
Borrowing date requested by the Company in funds immediately available to
the Agent. The proceeds of all such Committed Loans will then be made
available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the
amounts made available to the Agent by the Banks and in like funds as
received by the Agent.
(d) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to
have a Loan be made as, converted into or continued as an Offshore Rate
Loan.
(e) After giving effect to any Committed Borrowing, conversion or
continuation, there shall not be more than ten different Interest Periods in
effect in respect of all Committed Loans and all Bid Loans then outstanding.
2.04 Letter of Credit Requests.
(a) Whenever the Company wishes to have the Issuing Bank issue a
Letter of Credit, the Company shall deliver to the Issuing Bank a Letter of
Credit Application with appropriate insertions, signed by the Company, and,
if such Letter of Credit is also to be issued for the account of a
Joint-Applicant, signed by the Joint-Applicant. Such Letter of Credit
Application shall be delivered at least two and not more than fifteen
Business Days prior to the requested date of issuance, except as provided in
clause (iv) in the proviso to Section 2.05. Requests for amendments to
Letters of Credit shall be submitted in writing at least two and not more
than fifteen Business Days prior to the requested amendment date. If at any
time the Issuing Bank is not the Agent, a copy of such Letter of Credit
Application shall be delivered to the Agent as well. The Agent shall
deliver notice of the request for the issuance of a Letter of Credit to all
other Banks and copies thereof to all such Banks which have requested such
copies. In each Letter of Credit Application, the Company shall designate
whether the Letter of Credit is a Financial L/C or a Performance L/C and
whether, if it is a Financial L/C, it is being issued to support worker's
compensation obligations of the Company and its Subsidiaries. The
determination of the Issuing Bank and the Agent as to such designation shall
be made at or prior to the time such Letter of Credit is issued, shall be
conclusive in the event of any disagreement with the Company with respect
thereto and shall govern during the term of this Agreement, notwithstanding
any subsequent change in the definition of any such term in the applicable
regulations.
(b) Letters of Credit may be Financial L/Cs or Performance L/Cs,
and all Letters of Credit shall be denominated in Dollars. No Letter of
Credit shall have a final expiration date later than the earlier of (i) one
year from the date issuance or (ii) the Termination Date.
21
(c) The Agent shall deliver to the Company a copy of each Letter
of Credit issued and each amendment thereto and shall also promptly deliver
a copy thereof to each other Bank which has requested such a copy. Each
Letter of Credit shall provide that payment thereunder shall not be made
earlier than three Business Days after receipt of any documents demanding
payment thereunder.
2.05 Extension of Letters of Credit. If (a) any Letter of Credit
provides that the term thereof will be automatically extended or renewed (by
issuance of a substitute Letter of Credit or otherwise) unless notice is
given by the Issuing Bank on or before a specified date (hereinafter called
the "Extension Refusal Date") that such Issuing Bank will not permit such
extension or renewal or (b) the Company requests the extension or renewal of
any other Letter of Credit, then for purposes of Sections 2.01, 2.04, and
4.03 of this Agreement, any such renewal or extension granted by the Issuing
Bank (hereinafter called an "Extension") shall be deemed to be the issuance
of a new Letter of Credit and such issuance shall be deemed to occur on the
Extension Refusal Date in the case of a Letter of Credit described in clause
(a) above, or the date of such request in the case of a Letter of Credit
described in clause (b) above; provided, however, that (i) such extension
shall not cause the respective Letter of Credit to expire later than the
earlier of (A) one year from the extension date or (B) the Termination Date;
(ii) the Extension shall not be deemed to cause any duplication of the
amount of such Letter of Credit for purposes of determining compliance with
subsection 2.01(b); (iii) the Issuing Bank shall receive at least ten but
not more than thirty Business Days' prior written notice of such Extension,
and the accompanying Letter of Credit Application shall state that it
relates to such Extension and shall specify the related Extension Refusal
Date, if any; and (iv) no document need be delivered by the Issuing Bank
pursuant to subsection 2.04(c) with respect to any Letter of Credit
described in clause (a) above unless the terms of such Letter of Credit so
require.
2.06 Conversion and Continuation Elections for Committed Borrowings.
(a) Prior to the Termination Date, the Company may, upon
irrevocable written notice (or telephonic notice, promptly confirmed by a
writing) to the Agent in accordance with subsection 2.06(b):
(1) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Committed Loans, to convert any
such Committed Loans (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Committed Loans of any other Type; or
(2) elect, as of the last day of the applicable Interest
Period, to continue any Offshore Rate Committed Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less
than $5,000,000, or that is in an integral multiple of $1,000,000 in
excess thereof);
provided, however, that if the aggregate amount of Offshore Rate Committed
22
Loans has been reduced, by payment, prepayment, or conversion of part
thereof to be less than $5,000,000, such Offshore Rate Committed Loans shall
automatically convert into Base Rate Committed Loans, and on and after such
date the right of the Company to continue such Committed Loans as, and
convert such Committed Loans into, Offshore Rate Committed Loans shall
terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation
in accordance with Section 10.02 to be received by the Agent not later than
(i) 9:30 a.m. (Chicago time) at least two Business Days in advance of the
Conversion Date or continuation date, if the Committed Loans are to be
converted into or continued as Offshore Rate Committed Loans; and (ii) 10:30
a.m. (Chicago time) on the Conversion Date, if the Committed Loans are to be
converted into Base Rate Committed Loans; specifying:
(1) the proposed Conversion Date or continuation date;
(2) the aggregate amount of Committed Loans to be converted or
continued;
(3) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(4) other than in the case of conversions into Base Rate
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans, the Company has failed to select a new
Interest Period to be applicable to such Offshore Rate Committed Loans or if
any Default or Event of Default shall then exist, the Company shall be
deemed to have elected to convert such Offshore Rate Committed Loans into
Base Rate Committed Loans effective as of the expiration date of such
current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation, the
Agent will promptly notify each Bank thereof, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and continuations
shall be made pro rata according to the respective outstanding principal
amounts of the Committed Loans with respect to which the notice was given
held by each Bank.
(e) Unless the Majority Banks shall otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to
have a Committed Loan converted into or continued as an Offshore Rate
Committed Loan.
2.07 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.01, each Bank severally agrees that the Company may, as set forth
in Section 2.08, from time to time request the Banks prior to the
Termination Date to submit offers to make Bid Loans to the Company;
provided, however, that the Banks may, but shall have no obligation to,
submit such offers and the Company may, but shall have no obligation to,
accept any such offers; and provided, further, that at no time shall (a) the
outstanding aggregate principal amount of all Bid Loans made by all Banks,
plus the outstanding aggregate principal amount of all Committed Loans made
by all Banks, plus the aggregate undrawn face amount of all outstanding
Letters of Credit, plus the aggregate amount of drawings made under Letters
23
of Credit for which the applicable Issuing Bank has not yet been reimbursed
exceed the Aggregate Commitment; (b) the outstanding aggregate principal
amount of all Bid Loans made by all Banks exceed 75% of the Aggregate
Commitment; or (c) the number of Interest Periods for Bid Loans then
outstanding plus the number of Interest Periods for Committed Loans then
outstanding exceed ten.
2.08 Procedure for Bid Borrowings (a) When the Company wishes to
request the Banks to submit offers to make Bid Loans hereunder, it shall
transmit to the Agent by facsimile transmission a notice in substantially
the form of Exhibit H attached hereto (a "Competitive Bid Request") so as to
be received no later than 11:00 a.m. (Chicago time) (i) four Business Days
prior to the date of a proposed Bid Borrowing in the case of an IBOR
Auction, or (ii) one Business Day prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(1) the date of such Bid Borrowing, which shall be a Business
Day;
(2) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $5,000,000 or in integral multiples of $1,000,000 in
excess thereof;
(3) whether the Competitive Bids requested are to be for IBOR Bid
Loans or Absolute Rate Bid Loans or both; and
(4) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period" herein.
Subject to subsection 2.08(c), the Company may not request Competitive Bids
for more than three Interest Periods in a single Competitive Bid Request and
may not request Competitive Bids more than once in any period of five
Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Banks by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an invitation by the Company to
each Bank to submit Competitive Bids offering to make the Bid Loans to which
such Competitive Bid Request relates in accordance with this Section 2.08.
(c) (i) Each Bank may at its discretion submit a Competitive Bid
containing an offer or offers to make Bid Loans in response to any
Invitation for Competitive Bids. Each Competitive Bid must comply with the
requirements of this subsection 2.08(c) and must be submitted to the Agent
by facsimile transmission at the Agent's office for notices set forth on the
signature pages hereto not later than (A) 8:30 a.m. (Chicago time) three
Business Days prior to the proposed date of Borrowing, in the case of an
IBOR Auction or (B) 8:30 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction; provided, however, that
Competitive Bids submitted by BofA (or any Affiliate of BofA) in the
capacity of a Bank may be submitted, and may only be submitted, if BofA or
such Affiliate notifies the Company of the terms of the offer or offers
contained therein not later than (1) 8:15 a.m. (Chicago time) three Business
Days prior to the proposed date of Borrowing, in the case of an IBOR Auction
or (2) 8:15 a.m. (Chicago time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction.
24
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit I attached hereto, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (1) may be equal
to, greater than or less than the Commitment of the quoting Bank,
(2) must be $5,000,000 or in multiples of $1,000,000 in excess thereof,
and (3) may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects an IBOR Auction, the margin
above or below the IBO Rate (the "IBOR Bid Margin") offered for each
such Bid Loan, expressed in multiples of 1/1000th of one basis point to
be added to or subtracted from the applicable IBO Rate and the Interest
Period applicable thereto;
(D) in case the Company elects an Absolute Rate Auction, the
rate of interest per annum expressed in multiples of 1/1000th of one
basis point (the "Absolute Rate") offered for each such Bid Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit I or
does not specify all of the information required by subsection (c)(ii)
of this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i).
(d) Promptly on receipt and not later than 9:00 a.m. (Chicago
time) three Business Days prior to the proposed date of Borrowing in the
case of an IBOR Auction, or 9:00 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, the Agent will notify
the Company of the terms (i) of any Competitive Bid submitted by a Bank that
is in accordance with subsection 2.08(c), and (ii) of any Competitive Bid
that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid submitted by such Bank with respect to the same Competitive
Bid Request. Any such subsequent Competitive Bid shall be disregarded by
the Agent unless such subsequent Competitive Bid is submitted solely to
correct a manifest error in such former Competitive Bid and only if received
within the times set forth in subsection 2.08(c). The Agent's notice to the
25
Company shall specify (i) the aggregate principal amount of Bid Loans for
which offers have been received for each Interest Period specified in the
related Competitive Bid Request; and (ii) the respective principal amounts
and IBOR Bid Margins or Absolute Rates, as the case may be, so offered.
Subject only to the provisions of Sections 3.02, 3.05 and 4.03 and the
provisions of this subsection (d), any Competitive Bid shall be irrevocable
except with the written consent of the Agent given on the written
instructions of the Company.
(e) Not later than 9:30 a.m. (Chicago time) three Business Days
prior to the proposed date of Borrowing, in the case of an IBOR Auction, or
9:30 a.m. (Chicago time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction, the Company shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.08(d). The Company shall be under no obligation to accept any
offer and may choose to reject all offers. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each
Interest Period that is accepted. The Company may accept any Competitive
Bid in whole or in part; provided, however, that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related Competitive
Bid Request;
(ii) the principal amount of each Bid Borrowing must be
$5,000,000 or in any integral multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of
ascending IBOR Bid Margins or Absolute Rates within each Interest
Period, as the case may be; and
(iv) the Company may not accept any offer that is described
in subsection 2.08(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Banks with the same IBOR
Bid Margins or Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Bid Loans
in respect of which such offers are accepted shall be allocated by the Agent
among such Banks as nearly as possible (in such multiples, not less than
$1,000,000, as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determination by the Agent of
the amounts of Bid Loans shall be conclusive in the absence of manifest
error.
(g) (i) The Agent will promptly notify each Bank having
submitted a Competitive Bid if its offer has been accepted and, if its
offer has been accepted, of the amount of the Bid Loan or Bid Loans to
be made by it on the date of the Bid Borrowing.
(ii) Each Bank which has received notice pursuant to
subsection 2.08(g)(i) that its Competitive Bid has been accepted shall
make the amounts of such Bid Loans available to the Agent for the
account of the Company at the Agent's Payment Office, by 1:00 p.m.
(Chicago time) on such date of Bid Borrowing, in funds immediately
available to the Agent for the account of the Company at the Agent's
Payment Office.
(iii) Promptly following each Bid Borrowing, the Agent shall
26
notify each Bank of the ranges of bids submitted and the highest and
lowest Bids accepted for each Interest Period requested by the Company
and the aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Banks shall
furnish such information to the Agent as the Agent may request relating
to the making of Bid Loans, including the amounts, interest rates,
dates of borrowings and maturities thereof, for purposes of the
allocation of amounts received from the Company for payment of all
amounts owing hereunder.
(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of
Borrowing all applicable conditions to funding referenced in Sections 3.02,
3.05 and 4.03 are satisfied, the Banks whose offers the Company has accepted
will fund each Bid Loan so accepted. Nothing in this Section 2.08 shall be
construed as a right of first offer in favor of the Banks or to otherwise
limit the ability of the Company to request and accept credit facilities
from any Person (including any of the Banks), provided that no Default or
Event of Default would otherwise arise or exist as a result of the Company
executing, delivering or performing under such credit facilities.
2.09 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than three Business Days' prior written or telephonic
(promptly confirmed with a writing) notice to the Agent given prior to 11:00
a.m. (Chicago time) (which notice shall be irrevocable), terminate or
permanently reduce the Aggregate Commitment by an aggregate minimum amount
of $10,000,000 or any integral multiple of $5,000,000 in excess thereof;
provided, however, that no such reduction or termination shall be permitted
if, after giving effect thereto and to any prepayments of Committed Loans
made on the effective date thereof, the sum of the then outstanding
principal amount of the Loans and the Stated Amount of the then outstanding
Letters of Credit would exceed the Aggregate Commitment then in effect and,
provided, further, that once reduced in accordance with this Section 2.09,
the Aggregate Commitment may not be increased. Any reduction of the
Aggregate Commitment shall be applied to each Bank's Commitment in
accordance with such Bank's Commitment Percentage. All accrued commitment
fees to, but not including the effective date of any reduction or
termination of Commitments, shall be paid on the effective date of such
reduction or termination.
2.10 Optional Prepayments. (a) Subject to Section 3.04, the Company
may, at any time or from time to time, upon at least one Business Day's
notice to the Agent with respect to Base Rate Committed Loans and at least
three Business Days' notice to the Agent with respect to Offshore Rate
Committed Loans, ratably prepay Committed Loans in whole or in part, in an
aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in
excess thereof. Each such notice shall be delivered no later than 11:00
a.m. (Chicago time). Such notice of prepayment shall specify the date and
amount of such prepayment and the type of Committed Loans being prepaid.
Such notice shall not thereafter be revocable by the Company and the Agent
will promptly notify each Bank thereof and of such Bank's Commitment
Percentage of such prepayment. Such notice may be given by telephone,
promptly confirmed by a writing. If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04.
27
(b) Bid Loans may not be voluntarily prepaid.
2.11 Repayment. The Company shall repay to the Banks in full on the
Termination Date the aggregate principal amount of the Loans outstanding on
the Termination Date. The Company shall repay each Bid Loan on the last day
of the relevant Interest Period.
2.12 Repayment of Letter of Credit Drawings.
(a) With respect to each Letter of Credit,
(1) when a draft or other demand for payment is received by
the Issuing Bank, it shall promptly give notice thereof by telecopy or
telephone to the Agent and the Company;
(2) when a payment is made by the Issuing Bank, it shall
promptly give notice thereof to the Company and the Agent by telephone
or telecopy; and
(3) the Company agrees, and shall cause each Joint-Applicant
through its execution of a Letter of Credit Application to agree, to
promptly reimburse the Issuing Bank (by making payment to the Agent for
the account of such Issuing Bank) on the date of any payment or
disbursement made by such Issuing Bank under such Letter of Credit for
such payment or disbursement; provided, however, that the Company shall
not be deemed to be in default of this subsection 2.12(a)(1) or
subsection 8.01(a) with respect to any such reimbursement obligation
prior to the second Business Day after it has been notified that the
related payment or disbursement has been made by the Issuing Bank. Any
amount not reimbursed (by making payment to the Issuing Bank) on the
date of such payment or distribution by the Issuing Bank shall bear
interest from and including the date of such payment or disbursement to
but not including the date the Issuing Bank is reimbursed by the
Company therefor, payable on demand, at a rate per annum equal to (A)
the Base Rate from time to time in effect for each day through the
third Business Day after the Company's receipt of the notice provided
for in subsection (a)(i) above, and (B) the Base Rate plus 2% per annum
for each day thereafter.
(b) Subject to the terms and conditions of this Agreement, the
Company may use the proceeds of a Loan hereunder to so reimburse the Issuing
Bank. If on or before the first Business Day after receipt of the notice
required pursuant to subsection 2.12(a)(1), the Company requests a Loan to
which it is entitled under the terms of this Agreement for the purpose of
paying the related reimbursement obligation and in an amount sufficient to
fully pay such reimbursement obligation, then the Company shall not be
deemed to be in default of its reimbursement obligations under this Section
or subsection 8.01(a) even though such Loan is not made until a subsequent
Business Day (pursuant to the notice provisions of Section 2.03 or 2.08).
(c) The Company's obligation to reimburse the Issuing Bank for
payments and disbursements made by the Issuing Bank under any Letter of
Credit shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
28
Company or a Joint-Applicant may have or have had against the Issuing Bank
(or the Agent or any other Bank), including, without limitation, failure of
the Issuing Bank to comply with subsections (a)(i) and (ii) of this Section,
any defense based on the failure of the demand for payment under such Letter
of Credit to conform to the terms of such Letter of Credit or the legality,
validity, regularity or enforceability of such Letter of Credit or any
defense based on the identity of the transferee of such Letter of Credit or
the sufficiency of the transfer if such Letter of Credit is transferable;
provided, however, that the Company shall not be obligated to reimburse such
Issuing Bank for any wrongful payment or disbursement made under any Letter
of Credit as a result of acts or omissions constituting gross negligence or
willful misconduct on the part of the Issuing Bank or any of its officers,
employees or agents.
(d) The Company agrees that it will promptly examine the copy of
each Letter of Credit (and any amendments thereto) sent to it by the Issuing
Bank, as well as any and all instruments and documents delivered to the
Company from time to time, and in the event the Company has any claim of
non-compliance with the Company's instructions or of discrepancies or other
irregularity, the Company will promptly notify the Issuing Bank and the
Agent thereof in writing, and the Company and any Joint-Applicant shall be
deemed by their execution and delivery of the related Letter of Credit
Application to have waived any such claim against the Issuing Bank unless
such prompt notice is given.
(e) Unless specified to the contrary in the relevant Letter of
Credit Application, or any amendment to a Letter of Credit, the Company and
each Joint-Applicant agree by their execution of such application that the
Issuing Bank and its correspondents may receive and accept (i) any item
drawn or presented under such Letter of Credit or other document otherwise
in order, issued or purportedly issued by an agent, executor, trustee in
bankruptcy, receiver or other representative of the party who is authorized
under such Letter of Credit to issue such item or other document, as
complying with the terms of such Letter of Credit and (ii) documents which
on their face appear to comply with the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 or by later Uniform Customs and Practice fixed by later
Congresses of the International Chamber of Commerce as in effect on the date
the related Letter of Credit is issued.
2.13 Default in Reimbursement of Issuing Bank.
(a) If the Issuing Bank is not reimbursed by the Company for any
payment or disbursement under a Letter of Credit, the Agent shall promptly
notify each of the other Banks of such unreimbursed payment or disbursement,
and upon such notice the other Banks shall promptly on the same day (or the
next Business Day if such notice is received after 10:00 a.m., Chicago time)
provide the Agent with immediately available funds in Dollars for the
account of such Issuing Bank, covering such Bank's Commitment Percentage of
such payment or disbursement. If the Agent subsequently receives from the
Company or any Joint-Applicant any reimbursement of such payment or
disbursement, the Agent shall promptly remit to each Bank its Commitment
Percentage of such reimbursement. All interest payments received by the
Issuing Bank or the Agent on account of reimbursements under this Agreement
shall be promptly distributed by the Agent to the Issuing Bank and the other
Banks pro rata according to their respective Commitment Percentages (except
to the extent that the Issuing Bank was not promptly reimbursed by any such
Bank).
29
(b) The obligation of each Bank to provide the Agent with such
Bank's pro rata share of the amount of any payment or disbursement made by
the Issuing Bank under any outstanding Letter of Credit shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which such Bank may have or have
had against the Issuing Bank (or the Agent or any other Bank), including,
without limitation, any defense based on the failure of the demand for
payment under such Letter of Credit to conform to the terms of such Letter
of Credit or the legality, validity, regularity or enforceability of such
Letter of Credit or any defense based on the identity of the transferee of
such Letter of Credit or the sufficiency of the transfer if such Letter of
Credit is transferable; provided, however, that the Banks shall not be
obligated to reimburse such Issuing Bank for any wrongful payment or
disbursement made under any Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct on the part of
such Issuing Bank or any of its officers, employees or agents.
2.14 Interest.
(a) Subject to subsection 2.14(c), each Committed Loan shall bear
interest on the outstanding principal amount thereof from the date when made
until paid in full at a rate per annum equal to the Offshore Rate or the
Base Rate, as the case may be, plus the Applicable Margin for Base Rate
Committed Loans or Offshore Rate Committed Loans, as the case may be.
Subject to subsection 2.14(c), each Bid Loan shall bear interest on the
outstanding principal amount thereof from the relevant Borrowing Date at a
rate per annum equal to the IBO Rate plus (or minus, as the case may be) the
IBOR Bid Margin, or at the Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans pursuant to Section 2.10 for the portion of
the Loans so prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall be paid on
demand.
(c) While any Event of Default exists or after acceleration of
the Obligations, the Company shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the principal
amount of all Obligations due and unpaid at a rate per annum equal to the
Base Rate plus 2%.
2.15 Fees.
(a) Fees Payable to BofA and the Agent. The Company shall
pay to the Agent for the Arranger's and the Agent's own account fees in the
amounts and at the times set forth in a letter agreement between the
Company, BofA and the Arranger dated June 23, 1997.
(b) Commitment Fees. The Company shall pay to the Agent for
the account of each Bank a commitment fee of the Applicable Commitment Fee
Percentage per annum on the average daily unused portion of such Bank's
Commitment, computed as of the end of each calendar quarter in arrears based
upon the daily utilization for that quarter as calculated by the Agent. Such
commitment fee shall accrue from the Closing Date to the Termination Date
30
and shall be due and payable quarterly in arrears on the fifteenth day after
the end of each calendar quarter through the Termination Date, with the
first payment due on October 16, 1997 and the final payment to be made on
the Termination Date; provided, however, that, (i) in connection with any
reduction of Commitments pursuant to Section 2.09, the accrued commitment
fee calculated for the period ending on such date shall also be paid on the
date of such reduction, with the next succeeding quarterly payment being
calculated on the basis of the period from the reduction date to the end of
the quarter in which such reduction occurs, (ii) in connection with any
increase of Commitments pursuant to Section 2.21, the accrued commitment fee
calculated for the period ending on the Increase Date shall also be paid on
the date of such increase, with the next succeeding quarterly payment being
calculated on the basis of the period from the Increase Date to the end of
the quarter in which such increase occurs and (iii) in connection with any
termination of the Commitments pursuant to Section 2.09 or Article VIII, the
accrued commitment fee shall be paid on the date on which the termination
takes place. The commitment fees provided in this subsection shall accrue
at all times after the Closing Date, including at any time during which one
or more conditions in Article IV are not met. For purposes of calculating
the commitment fee, the principal amount of outstanding Committed Loans and
the Stated Amount of outstanding Letters of Credit shall be deemed
utilization of the Commitments, but the principal amount of outstanding Bid
Loans shall not be deemed utilization of the Commitments.
(c) Letter of Credit Fees.
(1) The Company shall pay to the Agent for the account of
the Banks, pro rata, a fee, according to their respective Commitment
Percentages, with respect to all Letters of Credit issued for the
account of the Company. Such fee shall be computed as of the end of
each calendar quarter as follows:
(x) With respect to all Financial L/Cs, the Applicable
Financial L/C Percentage per annum of the daily average Stated
Amount of each such Letter of Credit; and
(y) With respect to Performance L/Cs, the Applicable
Performance L/C Percentage per annum of the daily average Stated
Amount of such Performance L/Cs.
Such Letter of Credit fees shall be payable in arrears on the fifteenth day
after the end of each calendar quarter for Letters of Credit outstanding
during such quarter, with the first such payment due on October 16, 1997,
and on the expiration of the last Letter of Credit outstanding under this
Agreement.
(2) The Company shall pay to the Issuing Bank for its sole
account:
(x) In arrears on the fifteenth day after the end of
each calendar quarter, with the first such payment due on October
16, 1997, and on the expiration of the last Letter of Credit
issued by the Issuing Bank and outstanding under this Agreement,
an issuance fee of 0.15% per annum of the daily average Stated
Amount of all Letters of Credit issued by the Issuing Bank and
outstanding during the preceding calendar quarter; and
31
(y) From time to time, upon the amendment of any Letter
of Credit, such fees as the Issuing Bank customarily charges in
connection therewith at the times customarily charged by the
Issuing Bank.
(d) Fees under the Existing Company Credit Agreement. On
the Closing Date, the Company shall pay to the Agent the fees owed under the
Existing Company Credit Agreement which have not heretofore been paid.
2.16 Computation of Fees and Interest.
(a) All computations of interest payable in respect of Base Rate
Committed Loans at all times as the Base Rate is determined by BofA's
"reference rate" shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees
and interest under this Agreement shall be made on the basis of a 360-day
year and actual days elapsed. Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) The Agent will, with reasonable promptness, notify the
Company and the Banks of each determination of an Offshore Rate; provided,
however, that any failure to do so shall not relieve the Company of any
liability hereunder or provide the basis for any claim against the Agent.
(c) Each determination of an interest rate by the Agent pursuant
hereto shall be conclusive and binding on the Company the Banks in the
absence of manifest error.
2.17 Payments by the Company.
(a) All payments (including prepayments) to be made by the
Company on account of principal, interest, fees and other amounts required
hereunder, including reimbursement of drawings under Letters of Credit,
shall be made without set-off, recoupment or counterclaim and shall, except
as otherwise expressly provided herein, be made to the Agent for the ratable
account of the Banks at the Agent's Payment Office, in dollars and in
immediately available funds, no later than 1:00 p.m. (Chicago time) on the
dates specified herein. The Agent will promptly distribute to each Bank its
Commitment Percentage (or other applicable share as expressly provided
herein) of such principal, interest, fees or other amounts, in like funds as
received. Any payment which is received by the Agent later than 1:00 p.m.
(Chicago time) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be; subject
to the provisions set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Banks hereunder that
the Company will not make such payment in full as and when required
hereunder, the Agent may assume that the Company has made such payment in
32
full to the Agent on such date in immediately available funds and the Agent
may (but shall not be so required to), in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company shall not have
made such payment in full to the Agent, each Bank shall repay to the Agent
on demand such amount distributed to such Bank, together with interest
thereon for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate as in effect for each such day.
2.18 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Closing Date or, with respect to each Borrowing after the Closing Date,
at least one Business Day prior to the date of any proposed Borrowing, that
such Bank will not make available to the Agent as and when required
hereunder for the account of the Company the amount of that Bank's
Commitment Percentage of the Committed Borrowing or that Bank's Bid Loan, as
the case may be, the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required to), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds and the Agent in such
circumstances has made available to the Company such amount, that Bank shall
on the next Business Day following the date of such Borrowing make such
amount available to the Agent, together with interest at the Federal Funds
Rate for and determined as of each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under this
subsection 2.18(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute such
Bank's Loan on the Borrowing Date for all purposes of this Agreement. If
such amount is not made available to the Agent on the next Business Day
following such Borrowing Date, the Agent shall notify the Company of such
failure to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising
such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a
Loan on such Borrowing Date, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on
any Borrowing Date.
2.19 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of any Credit Extension
made by it any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its Commitment
Percentage (or other share contemplated hereunder) of payments on account of
the Credit Extensions obtained by all the Banks, such Bank shall forthwith
(a) notify the Agent of such fact, and (b) purchase from the other Banks
such participations in the Credit Extensions made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such
33
excess payment is thereafter recovered from the purchasing Bank, such
purchase shall to that extent be rescinded and each other Bank shall repay
to the purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's Commitment Percentage (according to the
proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.19 may, to the
fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect
to such participation as fully as if such Bank were the direct creditor of
the Company in the amount of such participation. The Agent will keep
records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased pursuant to this Section 2.19 and will in
each case notify the Banks following any such purchases or repayments.
2.20 Pro Rata Treatment. All Committed Borrowings and repayments shall
be effected so that after giving effect thereto all Committed Loans shall be
pro rata among the Banks according to their Commitment Percentages. All
participations and Letters of Credit shall be effected so that after giving
effect thereto all participations in each Letter of Credit shall be pro rata
among the Banks according to their Commitment Percentages.
2.21 Increase of Commitments. (a) At any time prior to the
Termination Date upon 30 days' notice in writing to the Agent and the Banks,
the Company may request that the Aggregate Commitment be increased to an
amount up to but not exceeding Four Hundred Million Dollars ($400,000,000).
Upon receipt of such request, each Bank may in its sole discretion agree to
increase its Commitment to an amount equal to its Commitment Percentage of
the increased Aggregate Commitment by notice to the Company and the Agent
not more than 20 days after the giving of notice by the Company to the
Banks. If any Bank elects not to increase its Commitment or does not reply
to the Company's notice within the specified time, such Bank's Commitment
shall remain at its original amount and its Commitment Percentage of the
Aggregate Commitment shall be adjusted accordingly.
(b) If the Company does not receive the agreement of any or all
of the Banks to increase the Aggregate Commitment as requested, the Company
may request any other of the Banks on a pro rata basis to increase its
Commitment and if none of the Banks agrees to such further increase in its
Commitment, the Company may request one or more other banks, with the
consent of the Agent (which shall not be unreasonably withheld), to assume
all or a ratable part of the increased Aggregate Commitment. Upon agreement
of such Bank or Banks, or upon such other bank becoming a party hereto
pursuant to Section 10.08, the Aggregate Commitment and each Bank's
Commitment and Commitment Percentage shall be entered on a new Schedule 2.01
to be effective on the date requested by the Company and agreed by the Banks
(the "Increase Date"). From and after the Increase Date to the Termination
Date, the Company may borrow, repay and reborrow pursuant to Section 2.01.
Any reimbursement of outstanding Letters of Credit on and after the Increase
Date shall be in accordance with the Commitment Percentage of each Bank as
modified (if any) on the Increase Date.
ARTICLE III.
34
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to subsection 3.01(g), any and all payments by the
Company to each Bank or the Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank
and the Agent, such taxes (including income taxes or franchise taxes)
imposed on or measured by such Bank's or the Agent's net income (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Subject to subsection 3.01(g), the Company shall indemnify
and hold harmless each Bank, the Issuing Bank and the Agent for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 3.01) paid by such
Bank, the Issuing Bank or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days
from the date any Bank, the Issuing Bank or the Agent makes written demand
therefor, except that the Company shall not be required to make such payment
within 30 days if (i) no Default or Event of Default has occurred and is
continuing and (ii) the Company is diligently contesting such Taxes or Other
Taxes and has agreed in writing to the satisfaction of each Bank, the
Issuing Bank and the Agent to pay to each such Bank, the Issuing Bank and
the Agent all such penalties, fines and interest incurred by such Bank, the
Issuing Bank and the Agent as a result of the Company's actions and the
resulting delay in payment. Notwithstanding the foregoing, if at any time a
Default or Event of Default occurs and is continuing, each Bank, the Issuing
Bank and the Agent may request the Company, and the Company shall, make
payment under this indemnification within 10 days from the date such Bank,
the Issuing Bank or the Agent makes written demand therefor. In any event,
the obligations owed by the Company under this subsection (c) shall be paid
not later than the Termination Date, unless otherwise agreed by the affected
Bank and the Company.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to
any Bank or the Agent, then, subject to subsection 3.01(g):
(1) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 3.01) such Bank or the
Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made;
35
(2) the Company shall make such deductions, and
(3) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company
of Taxes or Other Taxes, the Company shall furnish to the Agent the original
or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person other
than a United States person for United States Federal income tax purposes)
agrees no later than the Closing Date (or, in the case of a Bank which
becomes a party hereto pursuant to Section 10.08 after the Closing Date, the
date upon which the Bank becomes a party hereto) to deliver to the Company
through the Agent two accurate and complete signed originals of Internal
Revenue Service Form 1001, 4224 or any successor thereto, as appropriate, in
each case indicating that the Bank is on the date of delivery thereof
entitled to receive payments under this Agreement free from withholding of
United States Federal income tax.
(g) The Company shall not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to
subsection 3.01(d) to any Bank for the account of any Lending Office of such
Bank:
(1) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its
obligations under subsection 3.01(f) in respect of such Lending Office;
or
(2) if such Bank shall have delivered to the Company the forms
referred to in subsection 3.01(f), and such Bank shall not at any time
be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Company hereunder for
the account of such Lending Office for any reason other than a change
in United States law or regulations or in the official interpretation
of such law or regulations by any governmental authority charged with
the interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such forms.
(h) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to subsection 3.01(d), then such Bank shall use
its reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change
in the judgment of such Bank is not otherwise disadvantageous to such Bank.
3.02 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law or in the
interpretation or administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its Lending Office to make Offshore Rate Loans,
36
then, on notice thereof by the Bank to the Company through the Agent, the
obligation of that Bank to make Offshore Rate Loans (including in respect of
any IBOR Bid Loan as to which the Company has accepted such Bank's
Competitive Bid, but as to which the Borrowing Date has not arrived) shall
be suspended until the Bank shall have notified the Agent and the Company
that the circumstances giving rise to such determination no longer exists.
(b) If a Bank determines that it is unlawful for such Bank to
maintain any Offshore Rate Loan, the Company shall prepay in full all
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon, either on the last day of the Interest Period thereof if
the Bank may lawfully continue to maintain such Offshore Rate Loans to such
day, or immediately, if the Bank may not lawfully continue to maintain such
Offshore Rate Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.04.
(c) If the Company is required to prepay any Offshore Rate Loan
immediately as provided in subsection 3.02(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount
of such repayment, a Base Rate Committed Loan.
(d) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may elect, by
giving notice to the Bank through the Agent that all Loans which would
otherwise be made by the Bank as Offshore Rate Loans shall be instead Base
Rate Committed Loans.
(e) Before giving any notice to the Agent pursuant to this
Section 3.02, the affected Bank shall designate a different Lending Office
with respect to its Offshore Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will not, in the
judgment of the Bank, be illegal or otherwise disadvantageous to the Bank.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition of
or increase in reserve requirements included in the calculation of the
Offshore Rate) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
is any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Committed Loans or issuing or
participating in any Letter of Credit, then the Company shall be liable for,
and shall from time to time, upon demand therefor by such Bank (with a copy
of such demand to the Agent), pay to the Agent for the account of such Bank,
upon receipt of a certificate from such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs. Such
certificate shall set forth the amount owed to such Bank by the Company
under this subsection (a), shall explain the reason the payment is required
and shall be conclusive absent manifest error.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
37
compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank, with any Capital Adequacy Regulation; reduces or would
reduce the rate of return on such Bank's capital as a consequence of its
Commitment, the Loans, the Letters of Credit or its participation therein to
a level below that which such Bank could have achieved but for such
introduction, change or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) then, upon
demand of such Bank (with a copy to the Agent), the Company shall pay to the
Bank, from time to time as specified by the Bank, upon receipt of a
certificate from such Bank, additional amounts sufficient to compensate the
Bank for such reduction. Such certificate shall set forth the amount owed
to such Bank by the Company under this subsection (b), shall explain the
reason the payment is required and shall be conclusive absent manifest
error.
3.04 Funding Losses. The Company agrees to reimburse each Bank and to
hold each Bank harmless from any loss or expense which the Bank may sustain
or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment or required prepayment of principal of any Offshore Rate Loan
(including payments made after any acceleration thereof);
(b) the failure of the Company to borrow, continue or convert a
Committed Loan after the Company has given a Notice of Borrowing or a Notice
of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment of any
Committed Loan after the Company has given a notice in accordance with
Section 2.10;
(d) the prepayment or other payment (including after acceleration
thereof) of an Offshore Rate Loan or Absolute Rate Bid Loan on a day which
is not the last day of the relevant Interest Period with respect thereto;
(e) the automatic conversion under Section 2.06 of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a day that is
not the last day of the relevant Interest Period; or
(d) the conversion pursuant to Section 2.06 of any Offshore Rate
Committed Loan to a Base Rate Committed Loan on a day that is not the last
day of the respective Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans
hereunder or from fees payable to terminate the deposits from which such
funds were obtained. Solely for purposes of calculating amounts payable by
the Company to the Banks under this Section 3.04, each Offshore Rate
Committed Loan made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
IBO Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for
a comparable period, whether or not such Offshore Rate Loan is in fact so
funded.
38
3.05 Inability to Determine Rates. If the Agent determines that for
any reason adequate and reasonable means do not exist for ascertaining the
IBO Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan or that the IBO Rate applicable pursuant to subsection
2.14(a) for any requested Interest Period with respect to a proposed
Offshore Rate Loan does not adequately and fairly reflect the cost to the
Banks of funding such Loan, the Agent will forthwith give notice of such
determination to the Company and each Bank. Thereafter, the obligation of
the Banks to make or maintain Offshore Rate Loans hereunder shall be
suspended until the Agent revokes such notice in writing. Upon receipt of
such notice, the Company may revoke any Notice of Borrowing, Notice of
Conversion/Continuation or notice of acceptance of an offer with respect to
an IBOR Bid Loan. If the Company does not revoke such notice, the Banks
shall make, convert or continue the Offshore Rate Loans, as proposed by the
Company, in the amount specified in the applicable notice submitted by the
Company, but such Offshore Rate Loans shall be made, converted or continued
as Base Rate Committed Loans instead of Offshore Rate Loans.
3.06 Substitution of Banks. Upon the receipt by the Company from any
Bank (an "Affected Bank") of a claim for compensation pursuant to Sections
3.01, 3.02 or 3.03, the Company may: (i) request one or more of the other
Banks to acquire and assume all or part of such Affected Bank's Loans and
Commitments but no Bank shall be required to do so; or (ii) designate an
Eligible Assignee satisfactory to the Company and the Agent to acquire and
assume all or part of such Affected Bank's Loans and Commitments (a
"Replacement Bank"). Any such designation of a Replacement Bank under clause
(ii) shall be subject to the prior written consent of the Agent, and such
Replacement Bank shall comply with Section 10.08 as if it were an Assignee.
3.07 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT
4.01 Conditions to Effectiveness and Initial Advances of Loans and
Issuances of Letters of Credit. This Agreement shall not become effective
until, and the obligation of (i) each Bank to make its initial Committed
Loans hereunder and (ii) the Issuing Bank to issue, and of each Bank to
purchase a participation in, the initial Letter of Credit, is subject to the
condition that (A) the Agent shall have received on or before the Closing
Date the items set forth in subsections (a) through (j) below in form and
substance satisfactory to the Agent and each Bank in sufficient copies for
each Bank and (B) the condition that the events set forth in subsection (i)
below shall have been, or shall be concurrently, completed to the
satisfaction of the Agent and the Banks:
(a) Credit Agreement. This Agreement, executed by each party
thereto (provided that the Agent may accept a facsimile transmitted
signature page from any Bank (to be confirmed promptly by receipt of
originally executed pages) which shall bind such Bank with the same force
and effect as an originally executed signature page from such Bank);
39
(b) Resolutions; Incumbency. Each of the following documents:
(1) copies of the resolutions of the board of directors of the
Company, or any duly authorized committee thereof, approving and
authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents and the transactions contemplated hereby,
and authorizing the Credit Extensions, certified as of the Closing Date
by the Secretary or an Assistant Secretary of the Company; and
(2) a certificate of the Secretary or Assistant Secretary of the
Company, certifying the names and true signatures of the officers of
the Company authorized to execute, deliver and perform, as applicable,
this Agreement and all other Loan Documents to be delivered by each
such Person hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(1) the articles or certificate of incorporation and the bylaws
of the Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company as of the Closing Date;
and
(2) a good standing certificate for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation and the state of Minnesota.
(d) Legal Opinion. The opinion of Xxxx X. Xxxxxxx, counsel to
the Company, addressed to the Agent and the Banks, substantially in the form
of Exhibit J attached hereto;
(e) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(1) the representations and warranties contained in Article V are
true and correct on and as of such date as though made on and as of
such date;
(2) no Default or Event of Default exists or would result from
the initial Borrowing; and
(3) except as disclosed in filings by the Company with the
Securities and Exchange Commission on Form 10-K for the year ended
December 31, 1996, on Form 10-Q for the quarter ended March 31, 1997,
and on form 8-K dated May 16, 1997, there has occurred since December
31, 1996, no event or circumstance that has resulted or could
reasonably be expected to result in a material adverse change in the
financial condition, business, operations, properties or prospects of
the Company and its Subsidiaries; and
(4) all of the conditions precedent set forth in Section 4.01 on
the part of the Company or any Subsidiary of the Company to be
satisfied have been satisfied in full as of the Closing Date;
40
(f) Payment of Fees and Expenses. The Company shall have paid
all fees due on the Closing Date, together with the Agent's Attorney Costs
incurred up to and including the Closing Date;
(g) Existing Indebtedness. All loans and letters of credit
outstanding under, and all other amounts due in respect of, the Existing
Company Credit Agreement shall have been repaid in full or canceled (except
that the Old Letters of Credit shall be deemed to exist and continue under
this Agreement); the commitments thereunder shall have been permanently
terminated and all obligations thereunder and any security interests and
guarantees relating thereto shall have been discharged and released; and
the Agent and the Company shall have received reasonably satisfactory
evidence of such repayment, termination, discharge and release;
(h) Indebtedness. After giving effect to the transactions
contemplated hereby, the Company and its Subsidiaries shall have outstanding
no Indebtedness or preferred stock as of the Closing Date other than (i) the
Obligations and (ii) other Indebtedness set forth on Schedule 4.01 hereto;
(i) Approvals and Consents. All requisite or necessary
governmental authorities and third parties shall have approved or consented
to the transactions contemplated hereby to the extent required, all such
approvals and consents shall remain in effect and all applicable appeal
periods shall have expired, and there shall be no governmental or judicial
action, actual or threatened, that has a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the
transactions contemplated hereby;
(j) Other Documents. Such other approvals, opinions or documents
as the Agent or any Bank may reasonably request.
4.02 Conditions to All Credit Extensions. The obligation of each Bank
to make any Credit Extension to be made by it hereunder is subject to the
satisfaction of the following conditions precedent on the date of the
relevant Credit Extension:
(a) Notice of Borrowing or Continuation/Conversion. With respect
to each Committed Borrowing, the Agent shall have received a Notice of
Borrowing or a Notice of Continuation/Conversion, as applicable;
(b) Notice of Acceptance. With respect to each Bid Borrowing,
the Agent shall have received notice of acceptance of the offer(s) by the
Company pursuant to subsection 2.08(e);
(c) Letter of Credit Request. With respect to each request for
the issuance or amendment of a Letter of Credit, the Issuing Bank shall have
received (and in the event the Issuing Bank is not the Agent, the Agent
shall have received) (i) a Letter of Credit Application, with all blanks
completed, signed by the Company and any Subsidiary of the Company also
requesting the issuance of such Letter of Credit and (ii) a written
certificate signed by a Responsible Officer, designating the Letter of
Credit as a Financial L/C or a Performance L/C and indicating whether such
Letter of Credit supports worker's compensation obligations;
(d) Continuation of Representations and Warranties. The
41
representations and warranties made by the Company contained in Article V
shall be true and correct on and as of such Credit Extension Date with the
same effect as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date); provided,
however, that the Company shall not represent or warrant as to subsection
5.10(b) on the date of any Credit Extension which only involves a conversion
or continuation of an existing Loan and/or the extension of a Letter of
Credit and does not require an advance of a new Loan by the Banks; and
(e) No Existing Default. No Default or Event of Default shall
exist or shall result from such Credit Extension.
Each such Notice of Borrowing, Notice of Continuation/Conversion, notice of
acceptance with respect to any Bid Loan offer or Letter of Credit
Application submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice or application and as of the date of each Credit Extension that
the conditions in this Section 4.02 are satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power.
(a) Each of the Company and each Material Subsidiary:
(1) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(2) has the power and authority and all material governmental
licenses, authorizations, consents and approvals to own its assets and
carry on its business and to execute, deliver, and perform its
obligations under the Loan Documents;
(3) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification or license, except where the failure to be so
qualified, licensed or in good standing would not adversely affect the
business or operations of the Company or such Subsidiary in any
significant manner; and
(4) is in compliance with all material Requirements of Law
applicable to it.
(b) Each Subsidiary of the Company which is not a Material
Subsidiary:
(1) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
42
(2) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets and carry on
its business;
(3) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification; and
(4) is in compliance with all material Requirements of Law
applicable to it;
except where any failure to comply with the requirements of this subsection
(b) would not, individually or in the aggregate, result in a Material
Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company of this Agreement and each other
Loan Document have been duly authorized by all necessary corporate action,
and do not and will not:
(a) contravene the terms of the Company's Organization Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which the Company is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Company or its property is
subject; or
(c) violate any Requirement of Law applicable to the Company.
5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company
of this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party, when executed and
delivered, will constitute the legal, valid and binding obligations of the
Company and any of its Subsidiaries to the extent it is a party thereto,
enforceable against such Person in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
5.05 Litigation. Attached hereto as Schedule 5.05 is a list of all
material litigation in which the Company or any Subsidiary is a plaintiff or
a defendant as of the Closing Date. Except as provided in Schedule 5.05,
there are no actions, suits, proceedings, claims or disputes pending, or to
the best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement, or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or
43
(b) would reasonably be expected to have a Material Adverse
Effect (and taking into account the reasonable likelihood of an adverse
decision). No injunction, writ, temporary restraining order or any order of
any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance of
this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
5.06 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. Neither the
Company nor any of its Subsidiaries is in default under or with respect to
any Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a Material
Adverse Effect.
5.07 ERISA Compliance. Except as referenced or provided for in either
Schedule 5.05 or Schedule 5.07 attached hereto:
(a) To the best knowledge of the Company, no facts or
circumstances exist which would reasonably be expected to have a Material
Adverse Effect in connection with the failure of any Plan, or the failure of
the Company, an ERISA Affiliate or any Person with regard to the Plan, to
comply with the applicable provisions of ERISA, the Code and other Federal
or state law. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or would, if
determined adversely to the Company or any Plan, reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect
to any Plan which has resulted or would reasonably be expected to result in
a Material Adverse Effect.
(c) To the best knowledge of the Company (i) no ERISA Event has
occurred or is reasonably expected to occur; (ii) neither the Company nor
any ERISA Affiliate has incurred, nor reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iii)
neither the Company nor any ERISA Affiliate has incurred, nor reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (iv) neither the Company nor any ERISA Affiliate has
engaged in a transaction that would reasonably be expected to be subject to
Section 4069 or 4212(c) of ERISA.
5.08 Title to Properties. As of the Closing Date, the property of the
Company and its Subsidiaries is subject to no Liens, other than Permitted
Liens.
5.09 Taxes. The Company and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have
paid all Federal and other material taxes, assessments, fees and other
44
governmental charges levied or imposed upon them or their properties, income
or assets otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP and no Notice of Lien has been
filed or recorded. There is no proposed tax assessment against the Company
or any of its Subsidiaries which would, if the assessment were made, have a
Material Adverse Effect.
5.10 Financial Condition.
(a) The audited consolidated financial statements of the Company
and its Subsidiaries dated December 31, 1996 and the unaudited consolidated
financial statements of the Company and its Subsidiaries dated March 31,
1997:
(1) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein; and
(2) are complete, accurate and fairly present the financial
condition of the Company and its Subsidiaries as of the date thereof
and results of operations for the period covered thereby.
(b) Except as disclosed in filings by the Company with the
Securities and Exchange Commission on Form 10-K for the year ended December
31, 1996, on Form 10-Q for the quarter ended March 31, 1997, and on form 8-K
dated May 16, 1997, since December 31, 1996, there has been no Material
Adverse Effect.
(c) As of the Closing Date, the Company and its consolidated
Subsidiaries have not incurred any material Contingent Obligations except
for those set forth on Schedule 5.10.
5.11 Environmental Matters.
(a) The on-going operations of the Company and each of its
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which would not (if enforced in accordance with applicable
law) result in liability that would reasonably be expected to have a
Material Adverse Effect.
(b) As of the Closing Date, except as specifically disclosed on
Schedule 5.11, none of the Company, any of its Subsidiaries or any of their
respective present property or operations is subject to any outstanding
written order from or agreement with any Governmental Authority nor subject
to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material.
(c) Except as specifically disclosed on Schedule 5.11, there are
no Hazardous Materials or other conditions or circumstances existing with
respect to any property, or arising from operations of the Company or any of
its Subsidiaries that would reasonably be expected to give rise to
Environmental Claims with a potential liability of the Company and its
Subsidiaries that in the aggregate for any such condition, circumstance or
property would reasonably be expected to have a Material Adverse Effect.
45
5.12 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary of the Company, is (a) an "investment
company" within the meaning of the Investment Company Act of 1940; or (b)
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation limiting
its ability to incur Indebtedness, except that certain Persons who may be
deemed to control the Company are registered investment companies within the
meaning of the Investment Company Act of 1940.
5.13 No Burdensome Restrictions. Neither the Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation, or
subject to any charter or corporate restriction, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
5.14 Solvency. The Company and each of its Material Subsidiaries are
Solvent.
5.15 Labor Relations. There are no strikes, lockouts or other labor
disputes against the Company or any of its Subsidiaries, or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
of its Subsidiaries, and no significant unfair labor practice complaint is
pending against the Company or any of its Subsidiaries or, to the best
knowledge of the Company, threatened against any of them before any
Governmental Authority which, in any case, could reasonably be expected to
have a Material Adverse Effect.
5.16 Copyrights, Patents, Trademarks and Licenses, etc. Except for any
failure to comply with the requirements of this Section 5.16 which would
not, individually or in the aggregate, result in a Material Adverse Effect:
(a) the Company or its Subsidiaries own or are licensed or otherwise have
the right to use all of the patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person; (b) to the best knowledge of the
Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed by the Company or any of its Subsidiaries infringes upon any rights
held by any other Person; and (c) except as specifically disclosed on
Schedule 5.05 attached hereto, no claim or litigation regarding any of the
foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or
code is pending or, to the knowledge of the Company, proposed.
5.17 Material Subsidiaries and Equity Investments. As of the Closing
Date, the Company has no Subsidiaries other than the Subsidiaries set forth
on Schedule 5.17 attached hereto. The Company has no Material Subsidiaries
other than as set forth on Schedule 5.17 or as disclosed to the Agent and
the Banks pursuant to Section 6.03(h) (including their jurisdiction of
incorporation) and has no Investment in any Person which is not a Subsidiary
of the Company except for such Investments that do not exceed in the
aggregate 10% of Consolidated Total Assets. All Investments of the Company
and its Subsidiaries (other than Investments in Subsidiaries) with a net
book value in excess of $1,000,000 as of the Closing Date are set forth on
Schedule 5.17(A) attached hereto.
5.18 Insurance. As of the Closing Date, the properties of the Company
46
and its Subsidiaries are insured with financially sound and reputable
insurance companies, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Company or
such Subsidiary operates.
5.19 Full Disclosure. None of the representations or warranties made
by the Company or any of its Subsidiaries in the Loan Documents as of the
date such representations and warranties are made or deemed made, and none
of the statements contained in each exhibit, report, statement or
certificate furnished by or on behalf of the Company or any Subsidiary in
connection with the Loan Documents as of the date such statements are made
or deemed made, contains any untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading.
ARTICLE VI.
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall have
any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in
writing:
6.01 Financial Statements. The Company shall deliver to the Agent in
form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 120 days after the
end of each fiscal year, a copy of the audited consolidated financial
statements of the Company as of the end of such fiscal year, setting forth
in each case in comparative form the figures for the previous year, and
accompanied by the opinion of KPMG Peat Marwick LLP or another
nationally-recognized independent public accounting firm which report shall
state that such consolidated financial statements present fairly in all
material respects the financial position of the Company and its Subsidiaries
as of the dates indicated and the results of their operations and their cash
flows for the periods indicated in conformity with GAAP; such opinion shall
not be qualified or limited for any reason, including, without limitation,
because of a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 60 days after the
end of each calendar quarter, a copy of the Company's quarterly report on
Form 10-Q filed with the SEC with respect to such fiscal quarter and an
operating report similar to that provided by the Company under the Existing
Company Credit Agreement showing the relevant data by business unit of the
Company.
6.02 Certificates; Other Information. The Company shall furnish to
the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
47
referred to in subsections 6.01(a) and (b) above, a Compliance Certificate,
signed by a Responsible Officer;
(b) copies of each registration statement (or prospectus
contained therein) of the Company other than with respect to employee
benefit plans, each periodic report regarding the Company required pursuant
to Section 13 of the Exchange Act, each annual report, each proxy statement
and any amendments to any of the above filed or reported by the Company with
or to any securities exchange or the Securities and Exchange Commission,
copies of each communication from the Company or any Subsidiary to the
Company's shareholders generally, promptly upon the filing or making thereof
and copies of such other filings, reports and communications with the
Company's shareholders as the Agent may from time to time request;
(c) upon release, copies of all financially material press
releases;
(d) promptly after the creation or Purchase of any Material
Subsidiary, the name of such Subsidiary, a description of its business, the
price paid for the stock or assets of such Subsidiary, its net worth and the
value of its assets; and
(e) promptly, such additional business, financial, corporate
affairs and other information as the Agent, at the request of any Bank, may
from time to time reasonably request.
6.03 Notices. The Company shall promptly notify the Agent and each
Bank upon a Responsible Officer of the Company obtaining knowledge:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default
under, any Contractual Obligation of the Company or any of its Subsidiaries
which would reasonably be expected to result in a Material Adverse Effect;
and (ii) any dispute, litigation, investigation, proceeding or suspension
which may exist at any time between the Company or any of its Subsidiaries
and any Governmental Authority which would reasonably be expected to result
in a Material Adverse Effect (and taking into account the reasonable
likelihood of an adverse decision);
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) which
would reasonably be expected to have a Material Adverse Effect (and taking
into account the reasonable likelihood of an adverse decision), or (ii) in
which the relief sought is an injunction or other stay of the performance of
this Agreement or any Loan Document;
(d) of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted or threatened against the
Company or any of its Subsidiaries or any of their respective properties
pursuant to any applicable Environmental Laws, (ii) all other Environmental
Claims, and (iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the property of the Company or any
Subsidiary that could reasonably be anticipated to cause the property of the
Company or any of its Subsidiaries or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws, if, individually or in the aggregate,
48
the events or conditions described or the amount claimed in clauses (i),
(ii) and (iii) would reasonably be expected to result in a Material Adverse
Effect;
(e) of the occurrence of any ERISA Event affecting the Company or
any ERISA Affiliate, and deliver to the Agent and each Bank a copy of any
notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the
Company or any ERISA Affiliate with respect to such event;
(f) any Material Adverse Effect subsequent to the date of the
most recent audited financial statements of the Company delivered to the
Banks pursuant to subsection 6.01(a);
(g) of any labor controversy resulting in or threatening to
result in any strike, work stoppage, boycott, shutdown or other labor
disruption against or involving the Company or any of its Subsidiaries;
(h) of any Subsidiary (including its jurisdiction of
incorporation) being or becoming a Material Subsidiary; and
(i) of any change in any rating assigned by any Rating Agency
with respect to the Company.
Each notice pursuant to this Section 6.03 shall be accompanied by
a written statement by a Responsible Officer of the Company setting forth
details of the occurrence referred to therein, and stating what action, if
any, the Company proposes to take with respect thereto and at what time.
Each notice under subsection 6.03(a) shall describe with particularity any
and all clauses or provisions of this Agreement or other Loan Document that
have been breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each of its Subsidiaries to:
(a) except as permitted in Section 7.02, preserve and maintain in
full force and effect its corporate existence and good standing under the
laws of its state or jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all material
rights, privileges, qualifications, permits, licenses and franchises
necessary or desirable in the normal conduct of its business except in
connection with transactions permitted by Section 7.02;
(c) use its reasonable efforts, in the Ordinary Course of
Business, to preserve its business organization and preserve the goodwill
and business of the customers, suppliers and others having material business
relations with it; and
(d) preserve or renew all of its registered trademarks, trade
names and service marks, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect, provided, however, that the
Company shall not be deemed to be in default under this Section 6.04 if a
49
Subsidiary (other than a Material Subsidiary) fails to comply herewith so
long as such failure is not material.
6.05 Maintenance of Property. The Company shall maintain, and shall
cause each of its Subsidiaries to maintain, and preserve all its property
which is used or useful in its business in good working order and condition,
ordinary wear and tear excepted, make all necessary repairs thereto and
renewals and replacements thereof, and to keep such property free of any
Hazardous Materials, except where the failure to do so would not reasonably
be expected to result in a Material Adverse Effect, except as permitted by
Section 7.02. The Company shall use at least the standard of care typical
in the industry in the operation of its facilities.
6.06 Insurance. The Company shall maintain, and shall cause each of
its Material Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its Properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts
as are customarily carried under similar circumstances by such other
Persons; including workers' compensation insurance, public liability and
property and casualty insurance. Upon request of the Agent or any Bank, the
Company shall furnish the Agent, with sufficient copies for each Bank, at
reasonable intervals (but not more than once per calendar year) a
certificate of a Responsible Officer of the Company (and, if requested by
the Agent, any insurance broker of the Company) setting forth the nature and
extent of all insurance maintained by the Company and its Material
Subsidiaries in accordance with this Section 6.06 (and which, in the case of
a certificate of a broker, were placed through such broker).
6.07 Payment of Obligations. The Company shall, and shall cause its
Subsidiaries to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and
(c) all Indebtedness, as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness;
provided, however, that the Company and its Subsidiaries shall not be deemed
to be in default under this Section 6.07 if failure to comply herewith would
not result in a Material Adverse Effect.
6.08 Compliance with Laws. The Company shall comply, and shall cause
each of its Subsidiaries to comply, in all material respects with all
material Requirements of Law applicable to it or its business (including the
Federal Fair Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
50
6.09 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each of its Material Subsidiaries to maintain
proper books of record and account, in which full, true and correct entries
in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company
and such Subsidiaries. The Company shall permit, and shall cause each of
its Material Subsidiaries to permit, representatives and independent
contractors of the Agent or any Bank to visit and inspect any of their
respective properties, to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants at such reasonable
times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided, however,
when a Default exists, (i) the Agent or any Bank may do any of the foregoing
with respect to the Company or any Subsidiary at any time during normal
business hours and without advance notice and (ii) such inspection,
examination and meetings shall be at the Company's expense.
6.10 Environmental Laws.
(a) The Company shall, and shall cause each of its Subsidiaries
to, conduct its operations and keep and maintain its property in compliance
in all material respects with all Environmental Laws.
(b) Upon the written request of the Agent or any Bank, the
Company shall submit to the Agent with sufficient copies for each Bank, at
the Company's sole cost and expense, a report providing an update of the
status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to
subsection 6.03(d).
6.11 Use of Proceeds. The Company may use the proceeds of the Loans
and the Letters of Credit (a) to provide all or a portion of the funds
necessary to repay in full all of the indebtedness owing by the Company, and
replace any letters of credit outstanding under the Existing Company Credit
Agreement, (b) to repurchase or redeem securities of the Company, (c) for
working capital and other general corporate purposes (including permitted
Purchases). Letters of Credit shall be used by the Company and its
Subsidiaries for Ordinary Course of Business purposes.
6.12 Further Assurances.
(a) The Company shall ensure that all written information,
exhibits and reports furnished to the Agent or the Banks do not and will not
contain any untrue statement of a material fact and do not and will not omit
to state any material fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to the Agent and the Banks and correct any defect or error
that may be discovered therein or in any Loan Document or in the execution,
acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Banks, the
Company shall (and shall cause any of its Subsidiaries to) do, execute,
acknowledge and deliver any and all such further acts, certificates,
51
assurances and other instruments as the Agent or such Banks, as the case may
be, may reasonably require from time to time in order (i) to carry out more
effectively the purposes of this Agreement or any other Loan Document, and
(ii) to better assure, convey, grant, assign, transfer, preserve, protect
and confirm to the Agent and Banks the rights granted or now or hereafter
intended to be granted to the Banks under any Loan Document or under any
other document executed in connection therewith.
ARTICLE VII.
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in
writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer
or permit any of its Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part
of its property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental
charges or statutory obligations which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is permitted by
Section 6.07, provided that no notice of Lien has been filed or recorded
under the Code;
(c) Liens arising in the Ordinary Course of Business in
connection with obligations (other than obligations for borrowed money) that
are not overdue or which are being contested in good faith and by
appropriate proceedings, including, but not limited to Liens under bid,
performance and other surety bonds, supersedeas and appeal bonds, Liens on
advance or progress payments received from customers under contracts for the
sale, lease or license of goods, software or services and upon the products
being sold or licensed, in each case securing performance of the underlying
contract or the repayment of such advances in the event final acceptance of
performance under such contracts does not occur; and Liens upon funds
collected temporarily from others pending payment or remittance on their
behalf;
(d) Liens (other than any Lien imposed by ERISA) required in the
Ordinary Course of Business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and its
Subsidiaries;
52
(f) purchase money security interests on any property acquired or
held by the Company or its Subsidiaries in the Ordinary Course of Business
securing Indebtedness incurred or assumed for the purpose of financing all
or any part of the cost of acquiring such property to the extent permitted
under Section 7.04; provided, however, that (i) any such Lien attaches to
such property concurrently with or within 20 days after the acquisition
thereof, (ii) such Lien attaches solely to the property so acquired in such
transaction, and (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property;
(g) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided, however, that (i) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board, and (ii) such deposit
account is not intended by the Company or any of its Subsidiaries to provide
collateral to the depository institution;
(h) rights of holders of notes or debentures issued by the
Company or any Subsidiary in deposits placed in trust to legally or "in
substance" defease such notes or debentures; and
(i) any Lien (not otherwise permitted by this Section 7.01)
securing an obligation of the Company or any Subsidiary if the aggregate
amount of all such obligations secured by all such Liens does not exceed 15%
of Consolidated Total Assets; provided, however, that the assets of any
Material Subsidiary may only be subject to Liens permitted under this
subsection 7.01(i) which secure obligations that do not exceed 15% of such
Material Subsidiary's total assets, as determined in accordance with GAAP.
7.02 Mergers, Consolidations and Dispositions of Assets.
(a) Except as provided in Section 7.02(b), the Company shall not,
and shall not permit any of its Subsidiaries to: (i) sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
related transactions) any property or assets (including accounts and notes
receivable, with or without recourse) (collectively, "transfer") to any
Person except in the Ordinary Course of Business; (ii) transfer to any
Person other than the Company or a Subsidiary any outstanding capital stock
that has been issued by any Subsidiary; or (iii) consolidate with or merge
into any other Person.
(b) Subsection 7.02(a) shall not apply to or restrict:
(i) the merger or consolidation of any third Person with or into
the Company or any existing Subsidiary of the Company, provided that
(A) no Default or Event of Default has occurred and is continuing at
the time of, or would result from, the consummation of such merger or
consolidation, and (B) either (1) the Company or such existing
Subsidiary of the Company is the surviving entity in such merger or, if
the third Person or a new entity is the surviving or resulting entity
in such merger or consolidation, it becomes a Subsidiary of the Company
by virtue of such merger or consolidation with an existing Subsidiary,
or (2) if the merger or consolidation involves an existing Subsidiary
53
of the Company and clause (B)(1) is not applicable, the transaction
would be permitted by subsection 7.02(b)(ix) utilizing the net book
value of the Subsidiary;
(ii) the merger or consolidation of any Subsidiary into the
Company, or with or into any other Subsidiaries, provided that if any
such transaction is between a Subsidiary and a Wholly-Owned Subsidiary,
the Wholly-Owned Subsidiary is the continuing or surviving corporation;
(iii) the transfer by any Subsidiary of the Company of any
assets (upon voluntary liquidation or otherwise) to the Company or a
Wholly-Owned Subsidiary of the Company;
(iv) transfers of real estate not used or useful in the
business of the Company and its Subsidiaries, any bulk sale of
inventory not representing a then current product line of the Company
or its Subsidiaries, or any sale of property or assets used in
connection with discontinued or abandoned product lines of the Company
or its Subsidiaries;
(v) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied
to the purchase price of such replacement equipment;
(vi) (A) the transfer of assets by the Company to any of its
Subsidiaries if such transfer is a sale for fair market value and the
consideration received by the Company is cash and (B) the transfer of
the business and assets of the Company's Computing Devices
International division to a Subsidiary of the Company;
(vii) the transfer, merger or consolidation of the assets
listed on Schedule 7.02 attached hereto;
(viii)any transfer of assets by the Company or any of its
Subsidiaries to any Person in connection with the extension of
Indebtedness or making an investment or acquisition transaction or
business combination otherwise permitted under this Agreement; and
(ix) transfers of assets not otherwise permitted hereunder
(whether by merger, consolidation or otherwise) occurring after the
Closing Date which are made for fair market value; provided, however,
that (A) at the time of any transfer, no Default or Event of Default
exists or would result from such transfer and (B) the aggregate net
book value of all assets so transferred per annum by the Company and
its Subsidiaries together shall not exceed 5% of Consolidated Total
Assets.
7.03 Cash Investments; Minority Investments. The Company shall not,
and shall not permit any of its Subsidiaries to, (A) invest any assets
classified in accordance with GAAP on the Company's consolidated balance
sheet as "cash and equivalents" or "short-term investments" in investments
other than Cash Equivalents and investment grade marketable securities or
54
(B) make any Investment in any Person which is not a Subsidiary of the
Company except for such Investments that, when aggregated with the
Investments set forth on Schedule 5.17(A) hereto, do not exceed in the
aggregate 10% of Consolidated Total Assets.
7.04 Indebtedness. The Company shall not, and shall not permit any of
its Subsidiaries to, incur, assume or suffer to exist any Indebtedness (a)
if a Default or Event of Default has occurred and is continuing or would
result from the incurrence or assumption of such Indebtedness or (b) if the
aggregate principal amount of all such Indebtedness of such Subsidiaries
would exceed 10% of Consolidated Net Worth.
7.05 Contingent Obligations. The Company shall not, and shall not
suffer or permit any of its Subsidiaries to, create, incur, assume or suffer
to exist any Contingent Obligations except:
(a) Contingent Obligations incurred pursuant to this Agreement;
(b) endorsements for collection or deposit in the Ordinary Course
of Business; and
(c) Contingent Obligations of the Company and its Subsidiaries in
an aggregate amount not in excess of $45,000,000.
7.06 Use of Proceeds. The Company shall not and shall not suffer or
permit any of its Subsidiaries to use any portion of the Loan proceeds,
directly or indirectly, in violation of Regulation G, T, U or X of the
Federal Reserve Board.
7.07 Hostile Acquisitions. The Company shall not, and shall not
permit any of its Subsidiaries to, (a) Purchase, or attempt to Purchase, any
Person by means of a public debt or equity tender offer or other unsolicited
takeover (or the equivalent thereof in any jurisdiction) or (b) engage in a
proxy contest (or the equivalent thereof in any jurisdiction) for control of
the board of directors (or the functional equivalent thereof) of any Person,
in either case which has not been approved and recommended by the board of
directors (or the functional equivalent thereof) of the Person being
acquired or proposed to be acquired or which is the subject of such proxy
contest.
7.08 Lease Obligations. The Company shall not permit the aggregate
minimum non- cancelable payment commitments in respect of Operating Leases
for the Company and its Subsidiaries on a consolidated basis determined in
accordance with GAAP at the end of any fiscal year to exceed, for any
subsequent fiscal year, $60,000,000 (exclusive of $16,000,000, or such
lesser amount as may be reserved in the Company's consolidated financial
statements to pay such commitments).
7.09 Interest Coverage Ratio. On and after the Closing Date, the
Company shall not permit its ratio of (a) EBIT to (b) Consolidated Interest
Expense, all calculated on a consolidated basis for the immediately
preceding four fiscal quarters of the Company, to be less than 2.75 to 1.00.
55
7.10 Debt/Total Capitalization. On and after the Closing Date, the
Company shall not permit its ratio of (a) Consolidated Indebtedness to (b)
the sum of Consolidated Indebtedness plus Consolidated Net Worth, all
calculated as of the end of the immediately preceding fiscal quarter of the
Company, to be greater than 50%.
7.11 Change in Business. The Company shall not, and shall not permit
any of its Subsidiaries to, (i) engage in any material line of business
substantially different from those lines of business carried on by the
Company and its Subsidiaries on the Closing Date; or (ii) extend any
material amount of Indebtedness to or make any material equity investment in
any Person which engages in one or more lines of business all of which are
substantially different from those lines of business carried on by the
Company and its Subsidiaries on the Closing Date; or (iii) enter into any
joint venture which engages in a material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the Closing Date.
7.12 Accounting Changes. The Company shall not, and shall not suffer
or permit any of its Subsidiaries to, make any significant change in
accounting treatment or reporting practices, except as required or permitted
by GAAP, or change the fiscal year of the Company or of any of its
consolidated Subsidiaries.
7.13 Contracts of Subsidiaries. The Company shall not permit any of
its Subsidiaries (other than Computing Devices Canada Ltd. and Computing
Devices Company Ltd. and its Subsidiaries) to enter into any contract
restricting the ability of such Subsidiary to pay dividends or make loans to
the Company or Subsidiaries of the Company.
ARTICLE VIII.
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan, or any
reimbursement obligation in respect of a Letter of Credit, or (ii) within 5
days after the same shall become due, any interest, fee or any other amount
payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any of its Subsidiaries made or deemed made
herein, in any Loan Document, or which is contained in any certificate,
document or financial or other statement by the Company, any of its
Subsidiaries, or their respective Responsible Officers, furnished at any
time under this Agreement, or in or under any Loan Document, shall prove to
have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in subsection 6.03(a),
(b), (c), (d) or (f), Section 6.09 or in Article VII; or the Company fails
to perform or observe any term, covenant or agreement contained in Section
6.01 or 6.02 or in subsection 6.03(e), (g), (h) or (i), and such default
56
continues unremedied for a period of 10 days; or
(d) Other Defaults. The Company fails to perform or observe
any other term or covenant contained in this Agreement or any Loan Document,
and such default continues unremedied for a period of 20 days; or
(e) Cross-Default. The Company or any of its Subsidiaries
(i) fails to make any required payment when due in respect of any
Indebtedness or Contingent Obligation having a principal or face amount of
$7,500,000 or more when due or any Rate Contract having a notional amount of
$7,500,000 or more when due (whether at scheduled maturity or required
prepayment or by acceleration, demand, or otherwise); or (ii) fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any
such Indebtedness or Contingent Obligation, and such failure continues after
the applicable grace or notice period, if any, specified in the document
relating thereto on the date of such failure if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and
payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or any
other Subsidiary of the Company (i) ceases or fails to be Solvent, or
generally fails to pay, or admits in writing its inability to pay, its debts
as they become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency Proceeding
with respect to itself; or (iv) takes any action to effectuate or authorize
any of the foregoing; provided, however, that it shall not be an Event of
Default under this subsection (f) if any Subsidiary of the Company to which
this subsection applies does not have annual revenues in excess of 1% of the
consolidated revenues of the Company or net worth which constitutes more
than 5% of the Consolidated Net Worth of the Company in the fiscal year
immediately preceding the date this subsection first becomes applicable to
such Subsidiary; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any other Subsidiary
of the Company, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Company's or any of its Subsidiaries' Properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or levy; (ii) the
Company or any of its Subsidiaries admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding;
or (iii) the Company or any of its Subsidiaries acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for
itself or a substantial portion of its property or business; provided,
however, that it shall not be an Event of Default under this subsection (g)
if any Subsidiary of the Company (other than a Guarantor) to which this
subsection applies does not have annual revenues in excess of 1% of the
57
consolidated revenues of the Company or net worth which constitutes more
than 5% of the Consolidated Net Worth of the Company in the fiscal year
immediately preceding the date this subsection first becomes applicable to
such Subsidiary; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or would reasonably be
expected to result in liability of the Company under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
which would reasonably be expected to result in a Material Adverse Effect;
or (ii) the Company or any ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount which would reasonably be expected
to result in a Material Adverse Effect; or
(i) Monetary Judgments. One or more final
(non-interlocutory) judgments, orders or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not fully covered by independent third-party insurance) as to any
single or related series of transactions, incidents or conditions, of
$10,000,000 or more, and the same shall remain unvacated and unstayed
pending appeal for a period of 10 days after the entry thereof; or
(j) Ownership. Any Person or group of Persons is the
beneficial owner of 30% or more of the voting power of the Company for a
period of 30 days or more. For purposes of this subsection (j), the terms
"group" and "beneficial owner" shall have the meanings given to those terms
in Section 13 of the Securities Exchange Act of 1934, as amended.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Majority Banks,
(a) declare the Commitment of each Bank to make Loans and
purchase participations in Letters of Credit and of the Issuing Bank to
issue Letters of Credit to be terminated, whereupon such Commitments shall
forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
paragraph (f) or (g) of Section 8.01 above (in the case of clause (i) of
paragraph (g) upon the expiration of the 60-day period mentioned therein),
the obligation of each Bank to make Loans and purchase participations in
Letters of Credit and of the Issuing Bank to issue Letters of Credit shall
automatically terminate without notice to the Company and the unpaid
principal amount of all outstanding Loans and all interest and other amounts
as aforesaid shall automatically become due and payable without further act
of the Agent or any Bank and without notice to the Company. If at the time
58
an Event of Default occurs, Letters of Credit are issued and unexpired, the
Company shall deposit with the Agent cash in an amount equal to the Stated
Amount of all Letters of Credit to be held as collateral therefor.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE IX.
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby irrevocably
(subject to Section 9.09) appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement and
each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, the Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Agent have or be deemed to have any fiduciary relationship with
any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall
(i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the
Banks for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in
any certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this Agreement
or any other Loan Document, or for the value of any collateral or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company or
any other party to any Loan Document to perform its obligations hereunder or
59
thereunder. No Agent-Related Person shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the
Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01, 4.02 and 4.03, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter either sent by the Agent to
such Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Bank, unless an officer of the Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from the Bank
prior to the initial Borrowing specifying its objection thereto and either
such objection shall not have been withdrawn by notice to the Agent to that
effect or the Bank shall not have made available to the Agent the Bank's
ratable portion of such Borrowing.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Banks, unless
the Agent shall have received written notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Majority Banks in accordance
with Article VIII; provided, however, that unless and until the Agent shall
have received any such request, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
9.06 Credit Decision. Each Bank expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it and
60
that no act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into
this Agreement and extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon the Agent
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of
the Agent-Related Persons.
9.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so),
ratably from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the repayment of the Loans and the termination or resignation
of the related Agent) be imposed on, incurred by or asserted against any
such Person any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by any such Person under or in connection with any of the foregoing;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Company. Without
limiting the generality of the foregoing, if the Internal Revenue Service or
any other Governmental Authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly withhold tax from amounts
paid to or for the account of any Bank (because the appropriate form was not
delivered, was not properly executed, or because such Bank failed to notify
the Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such
Bank shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
61
payable to the Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks in this
Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Company
and its Subsidiaries and Affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of
the Company or such Affiliates) and acknowledge that the Agent shall be
under no obligation to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers under this Agreement
as any other Bank and may exercise the same as though it were not the Agent,
and the terms "Bank" and "Banks" shall include BofA in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent shall resign as Agent under this Agreement, the Majority Banks
shall appoint from among the Banks a successor agent for the Banks which
successor agent shall be approved by the Company. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall
mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. If no successor agent
has accepted appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's resignation
shall nevertheless thereupon become effective and the Banks shall perform
all of the duties of the Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent as provided for above.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by the Company or any Guarantor therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Banks (or by
the Agent at the written request of the Majority Banks), the Company and
acknowledged by the Agent, and then such waiver shall be effective only in
the specific instance and for the specific purpose for which given;
provided, however, that no such waiver, amendment, or consent shall, unless
in writing and signed by all the Banks, the Company and acknowledged by the
Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate
62
any Commitment terminated pursuant to subsection 8.02(a)) or subject any
Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or of any fees or other amounts payable hereunder or
under any Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the Banks
or any of them to take any action under any Loan Document; or
(e) amend this Section 10.01 or Section 2.19;
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under
this Agreement or any other Loan Document.
10.02 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications provided for hereunder or in connection herewith shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by the Company
by facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on the applicable signature page hereof,
and (ii) shall be followed promptly by a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on the applicable signature page hereof; or, as directed to the
Company or the Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as directed to each
other party, at such other address as shall be designated by such party in a
written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next day) delivery, or transmitted by facsimile machine,
respectively, or if delivered, upon delivery, except that notices pursuant
to Article II or IX shall not be effective until actually received by the
Agent.
(c) The Company acknowledges and agrees that any agreement of the
Agent and the Banks in Article II herein to receive certain notices by
telephone and facsimile is solely for the convenience and at the request of
the Company. The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Company
to give such notice and the Agent and the Banks shall not have any liability
to the Company or other Person on account of any action taken or not taken
by the Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans shall not be
affected in any way or to any extent by any failure by the Agent and the
Banks to receive written confirmation of any telephonic or facsimile notice
63
or the receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse BofA (including in its capacity as Agent)
within twenty Business Days after demand (subject to subsection 4.01(f)) for
all costs and expenses incurred by BofA (including in its capacity as Agent)
in connection with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or modification to
(in each case, whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including the reasonable Attorney Costs incurred by BofA (including
in its capacity as Agent) with respect thereto;
(b) pay or reimburse each Bank and the Agent within twenty
Business Days after demand (subject to subsection 4.01(f)) for all costs and
expenses incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding) under this
Agreement, any other Loan Document, and any such other documents, including
Attorney Costs incurred by the Agent and any Bank; and
(c) pay or reimburse BofA (including in its capacity as Agent)
within twenty Business Days after demand (subject to subsection 4.01(i)) for
all audit, environmental inspection and review (including the allocated cost
of such internal services), search and filing costs, fees and expenses,
incurred or sustained by BofA (including in its capacity as Agent) in
connection with the matters referred to under subsections (a) and (b) of
this Section 10.04.
10.05 Indemnity. Whether or not the transactions contemplated hereby
shall be consummated:
(a) General Indemnity. The Company shall pay, defend, indemnify,
and hold each Bank, the Agent, the Arranger and each of their respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each,
an "Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including cleanup costs and engineering
consulting costs in respect of Environmental Claims and Attorney Costs) of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and any other
Loan Documents, or the transactions contemplated hereby and thereby, and
with respect to any investigation, litigation or proceeding (including any
64
Insolvency Proceeding, Environmental Claim proceedings or appellate
proceeding) related to this Agreement or the Loans or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities"); provided,
however, that the Company shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities arising from the
gross negligence or willful misconduct of such Indemnified Person.
(b) Survival; Defense. The obligations in this Section 10.05
shall survive payment and cancellation of all other Obligations. At the
election of any Indemnified Person, the Company shall defend such
Indemnified Person using legal counsel satisfactory to such Indemnified
Person in such Person's sole discretion, at the sole cost and expense of the
Company; provided, however, that the Company shall only be obligated to hire
one counsel to represent all of the Banks unless any Bank advises the
Company that its legal counsel has advised it that its interest is
materially different from that of the other Banks and it would not be
adequately represented without its own separate counsel, in which case the
Company shall hire separate counsel for such Bank, satisfactory to such
Bank. All amounts owing under this Section 10.05 shall be paid within 30
days after demand.
10.06 Marshaling; Payments Set Aside. Neither the Agent nor the Banks
shall be under any obligation to marshal any assets in favor of the Company
or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments to
the Agent or the Banks, or the Agent or the Banks exercise their rights of
set-off, and such payment or payments or the proceeds of such set-off or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Bank in its sole discretion) to be repaid
to a trustee, receiver or any other party in connection with any Insolvency
Proceeding, or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such enforcement or set-off had not occurred, and (b) each Bank
severally agrees to pay to the Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agent and each Bank.
10.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company (which
consent shall not be unreasonably withheld or delayed) at all times other
than during the existence of an Event of Default and of the Agent and the
Issuing Bank, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company, the Agent or the
Issuing Bank shall be required in connection with any assignment and
delegation by a Bank to a Bank Affiliate of such Bank) (each an "Assignee")
all, or any ratable part of all, of the Loans, the Commitments and the other
rights and obligations of such Bank hereunder, and if in part, in a minimum
amount of $10,000,000; provided, however, that (i) the Company and the Agent
may continue to deal solely and directly with such Bank in connection with
65
the interest so assigned to an Assignee until (A) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Company and the Agent by such Bank and the Assignee; (B) such Bank and its
Assignee shall have delivered to the Company and the Agent an assignment and
acceptance agreement in substantially the form of Exhibit B attached hereto,
together with any Notes subject to such assignment and (C) the assignor Bank
or Assignee has paid to the Agent a processing fee in the amount of $3,500.
The consent of the Company to any such assignment shall not be unreasonably
withheld.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an
executed assignment and acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such assignment and acceptance agreement, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the assignor
Bank shall, to the extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it pursuant to such
assignment and acceptance agreement, relinquish its rights and be released
from its obligations under the Loan Documents.
(c) Promptly after its receipt of notice by the Agent that it has
received an executed assignment and acceptance agreement and payment of the
processing fee, the Company shall execute and deliver to the Agent a new
Note evidencing such Assignee's Bid Loans and, if the assignor Bank has not
retained any portion of its Loans and its Commitment, the assignor Bank
shall return its original Note to the Company for cancellation. Immediately
upon each Assignee's making its processing fee payment under the assignment
and acceptance agreement, this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom.
The Commitment allocated to each Assignee shall reduce such Commitments of
the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of that Bank and the
other interests of that Bank (the "originating Bank") hereunder and under
the other Loan Documents; provided, however, that (i) the originating Bank's
obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to deal solely
and directly with the originating Bank in connection with the originating
Bank's rights and obligations under this Agreement and the other Loan
Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant shall have rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or
any other Loan Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as described in clauses
(a), (b) and (c) in the first proviso to Section 10.01. In the case of any
such participation, the Participant shall be entitled to the benefit of
Sections 3.01, 3.03 and 10.05 as though it were also a Bank hereunder, and
if amounts outstanding under this Agreement are due and unpaid, or shall
have been declared or shall have become due and payable upon the occurrence
of an Event of Default, each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under
66
this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" by the Company and provided to it by the
Company or any Subsidiary of the Company, or by the Agent on such Company's
or Subsidiary's behalf, in connection with this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the
terms contemplated by this Agreement; except to the extent such information
(i) was or becomes generally available to the public other than as a result
of a disclosure by the Bank, or (ii) was or becomes available on a
non-confidential basis from a source other than the Company, provided that
such source is not bound by a confidentiality agreement with the Company
known to the Bank; provided further, however, that any Bank may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable requirement of law; and (D) to such Bank's
independent auditors and other professional advisors. Notwithstanding the
foregoing, the Company authorizes each Bank to disclose to any Participant
or Assignee (each, a "Transferee") and to any prospective Transferee, such
financial and other information in such Bank's possession concerning the
Company or its Subsidiaries which has been delivered to Agent or the Banks
pursuant to this Agreement or which has been delivered to the Agent or the
Banks by the Company in connection with the Banks' credit evaluation of the
Company prior to entering into this Agreement; provided that, unless
otherwise agreed by the Company, such Transferee agrees in writing to such
Bank to keep such information confidential to the same extent required of
the Banks hereunder.
(f) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, any Bank may assign
all or any portion of the Loans or Notes held by it to any Federal Reserve
Bank or the United States Treasury as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Loans or Notes made by the Company to or
for the account of the assigning or pledging Bank in accordance with the
terms of this Agreement shall satisfy the Company's obligations hereunder in
respect to such assigned Loans or Notes to the extent of such payment. No
such assignment shall release the assigning Bank from its obligations
hereunder.
(g) Each bank that becomes a party hereto after the Closing Date
pursuant to Section 2.21 shall execute an assignment and acceptance
agreement substantially in the form of Exhibit B attached hereto and deliver
it to the Company and the Agent and shall pay the Agent a processing fee in
the amount of $3,500. The Company shall execute and deliver to such new
Bank a Note evidencing such Bank's Bid Loans. Immediately upon such Bank's
payment of the processing fee under the assignment and acceptance agreement,
this Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of such Bank and the resulting
adjustment of the Aggregate Commitment.
10.09 Set-off. In addition to any rights and remedies of the Banks
67
provided by law, if an Event of Default exists, each Bank is authorized at
any time and from time to time, without prior notice to the Company, any
such notice being waived by the Company to the fullest extent permitted by
law, to set off and apply any and all Company deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the
account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such
Bank shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Company and the Agent after any such set-off and
application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 10.09 are in addition to the
other rights and remedies (including other rights of set-off) which the Bank
may have.
10.10 Automatic Debits of Fees. With respect to any fee, or any other
cost or expense (including Attorney Costs) due and payable to the Agent or
BofA under the Credit Documents, the Company hereby irrevocably authorizes
BofA to debit any deposit account of the Company with BofA in an amount such
that the aggregate amount debited from all such deposit accounts does not
exceed such fee or other cost or expense. If there are insufficient funds
in such deposit accounts to cover the amount of the fee or other cost or
expense then due, such debits will be reversed (in whole or in part, in
BofA's sole discretion) and such amount not debited shall be deemed to be
unpaid. No such debit under this Section 10.10 shall be deemed a setoff.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices
to the Bank should be directed, of addresses of its Offshore Lending Office,
of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
10.12 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each
of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Agent.
10.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
10.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks and
the Agent, and their permitted successors and assigns, and no other Person
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any
of the other Loan Documents. Neither the Agent nor any Bank shall have any
obligation to any Person not a party to this Agreement or other Loan
Documents.
10.15 Time. Time is of the essence as to each term or provision of
68
this Agreement and each of the other Loan Documents.
10.16 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED
THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT
AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT
AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY ILLINOIS LAW.
10.17 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the
Company, the Banks and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
69
written, relating to the subject matter hereof and thereof, except for the
letter agreement between the Agent, the Arranger and the Company described
in subsection 2.15(a).
10.19 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Agent, the Company and other
parties, and is the product of all parties hereto. Accordingly, this
Agreement and the other Loan Documents shall not be construed against the
Banks or the Agent merely because of the Agent's or Banks' involvement in
the preparation of such documents and agreements.
10.20 Term of Agreement. This Agreement shall not terminate until all
Obligations (other than inchoate obligations under Article III and Section
10.05 which survive the termination of this Agreement) have been paid to the
Agent and the Banks, even though the Termination Date may have occurred.
10.21 Foreign Currency Conversion. If for the purpose of (a)
determining the amount owed to an Issuing Bank in respect of payments made
under a Letter of Credit or (b) obtaining judgment in any court, it is
necessary to convert a sum due hereunder in another currency into U.S.
Dollars, the Company agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures the Agent could purchase such other currency
with U.S. Dollars at San Francisco, California on the Business Day preceding
that on which the reimbursement amount in respect of the Letter of Credit is
due or final judgment is given.
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CERIDIAN CORPORATION
By:
Name:
Title:
Address for notices:
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Treasury Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
Name:
Title:
Address for notices:
Bank of America National Trust and Savings
Association
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Agency Administrative Services #5596
Re: Ceridian
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxx
71
Address for payment:
Bank of America NT&SA
ABA No. 000-000-000
Attn: Agency Administrative Services
No. 5596
Credit to Account No. 12339-15086
Ref: Ceridian Corporation
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION as a Bank
By:
Name:
Title:
Lending Office:
Bank of America-Account Administration
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Bank of America-Account Administration
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America NT&SA
000 Xxxxx XxXxxxx Xxxxxx (0X)
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
00
XXX XXXX XX XXX XXXX
By:
Name:
Title:
Lending Office:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Commercial Lending Office
Facsimile: (000) 000-0000 or 7924
Telephone: (000) 000-0000
Address for notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
73
NATIONSBANK
By:
Name:
Title:
Lending Office:
NationsBank
000 X. Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
NationsBank
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000
00
XXX XXXXX XXXXXXXXX BANK
By:
Name:
Title:
Lending Office:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Telephone:(000) 000-0000
Address for notices:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile:(000) 000-0000
Telephone: (000) 000-0000
75
FIRST AMERICAN NATIONAL BANK
By:
Name:
Title:
Lending Office:
First American National Bank
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Frenisa Joy
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
First American National Bank
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
76
FIRST BANK NATIONAL ASSOCIATION
By:
Name:
Title:
Lending Office:
First Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
First Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
77
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Lending Office:
PNC Bank, National Association
Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention:
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
PNC Bank, National Association
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
78
XXXXX FARGO BANK, N.A.
By:
Name:
Title:
Lending Office:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
79
TORONTO DOMINION BANK (TEXAS), INC.
By:
Name:
Title:
Lending Office:
Toronto Dominion Bank (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention:Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Toronto Dominion Bank (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
80
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
By:
Name:
Title:
Lending Office:
The Long Term Credit Bank of Japan, Ltd.
New York Branch
000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
The Long Term Credit Bank of Japan, Ltd.
New York Branch
000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
81
