Exhibit 4.3
CONFORMED COPY
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JULY 8, 1997
AMONG
DELUXE CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA SECURITIES, INC.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS.............................. 2
1.01 Certain Defined Terms................................................. 2
1.02 Other Interpretive Provisions......................................... 32
(a) Defined Terms................................................. 32
(b) The Agreement................................................. 32
(c) Certain Common Terms.......................................... 32
(d) Performance; Time............................................. 33
(e) Contracts..................................................... 33
(f) Laws.......................................................... 33
(g) Captions...................................................... 34
(h) Independence of Provisions.................................... 34
1.03 Accounting Principles................................................. 34
THE CREDITS.............................. 35
2.01 The Revolving Credit.................................................. 35
2.02 Loan Accounts; Bid Loan Notes......................................... 35
2.03 Procedure for Committed Borrowing..................................... 36
2.04 Conversion and Continuation Elections for Committed
Borrowings............................................................ 39
2.05 Bid Borrowings........................................................ 42
2.06 Procedure for Bid Borrowings.......................................... 42
2.07 Voluntary Termination or Reduction of Commitments..................... 52
2.08 Optional Prepayments.................................................. 52
2.09 Optional Increase in Commitments...................................... 54
2.10 Repayment............................................................. 55
2.11 Interest.............................................................. 55
2.12 Fees ................................................................. 57
(a) Arrangement, Agency Fees...................................... 57
(b) Facility Fees................................................. 57
2.13 Computation of Fees and Interest...................................... 58
2.14 Payments by the Company............................................... 60
2.15 Payments by the Banks to the Agent.................................... 62
2.16 Sharing of Payments, Etc.............................................. 63
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY.................65
3.01 Taxes.................................................................65
3.02 Illegality............................................................72
3.03 Increased Costs and Reduction of Return...............................74
3.04 Funding Losses........................................................76
3.05 Inability to Determine Rates..........................................77
3.06 Reserves on Offshore Rate Committed Loans.............................78
3.07 Certificates of Banks.................................................79
3.08 Substitution of Banks.................................................79
3.09 Survival..............................................................80
Section Page
ARTICLE IV
CONDITIONS PRECEDENT.......................... 80
4.01 Conditions of Initial Loans........................................... 80
(a) Credit Agreement; Notes....................................... 80
(b) Resolutions; Incumbency....................................... 81
(c) Organization Documents; Good Standing......................... 81
(d) Legal Opinions................................................ 82
(e) Payment of Fees............................................... 82
(f) Certificate................................................... 82
(g) Existing Agreement............................................ 83
(h) Other Documents............................................... 83
4.02 Conditions to All Borrowings.......................................... 83
(a) Notice of Borrowing or Conversion/Continuation................ 83
(b) Continuation of Representations and Warranties................ 83
(c) No Existing Default........................................... 84
ARTICLE V
REPRESENTATIONS AND WARRANTIES.................... 84
5.01 Corporate Existence and Power......................................... 84
5.02 Corporate Authorization; No Contravention............................. 86
5.03 Governmental Authorization............................................ 86
5.04 Binding Effect........................................................ 87
5.05 Litigation............................................................ 87
5.06 No Default............................................................ 88
5.07 ERISA Compliance...................................................... 88
5.08 Use of Proceeds; Margin Regulations................................... 90
5.09 Title to Properties................................................... 90
5.10 Taxes................................................................. 91
5.11 Financial Condition................................................... 91
5.12 Environmental Matters................................................. 92
5.13 Regulated Entities.................................................... 93
5.14 No Burdensome Restrictions............................................ 93
5.15 Copyrights, Patents, Trademarks and Licenses, etc..................... 93
5.16 Subsidiaries.......................................................... 94
5.17 Insurance............................................................. 94
5.18 Full Disclosure....................................................... 94
ARTICLE VI
AFFIRMATIVE COVENANTS.......................... 95
6.01 Financial Statements.................................................. 95
6.02 Certificates; Other Information....................................... 96
6.03 Notices............................................................... 97
6.04 Preservation of Corporate Existence, Etc..............................100
6.05 Maintenance of Property...............................................101
6.06 Insurance.............................................................101
6.07 Payment of Obligations................................................102
6.08 Compliance with Laws..................................................103
6.09 Compliance with ERISA.................................................103
6.10 Inspection of Property and Books and Records..........................103
6.11 Environmental Laws....................................................104
6.12 Use of Proceeds.......................................................105
Section Page
ARTICLE VII
NEGATIVE COVENANTS...........................105
7.01 Limitation on Liens...................................................105
7.02 Disposition of Assets.................................................109
7.03 Consolidations and Mergers............................................110
7.04 Transactions with Affiliates..........................................111
7.05 Use of Proceeds.......................................................111
7.06 Restricted Payments...................................................111
7.07 ERISA.................................................................112
7.08 Change in Business....................................................113
7.09 Accounting Changes....................................................113
7.10 Interest Coverage.....................................................113
7.11 Leverage..............................................................114
7.12 Subsidiary Indebtedness...............................................114
ARTICLE VIII
EVENTS OF DEFAULT............................115
8.01 Event of Default......................................................115
(a) Non-Payment......................................................115
(b) Representation or Warranty.......................................115
(c) Specific Defaults................................................116
(d) Other Defaults...................................................116
(e) Cross-Default....................................................116
(f) Insolvency; Voluntary Proceedings................................117
(g) Involuntary Proceedings..........................................117
(h) ERISA............................................................118
(i) Monetary Judgments...............................................119
(j) Non-Monetary Judgments...........................................119
(k) Change of Control................................................119
8.02 Remedies..............................................................120
8.03 Rights Not Exclusive..................................................121
ARTICLE IX
THE AGENT...............................121
9.01 Appointment and Authorization.........................................121
9.02 Delegation of Duties..................................................122
9.03 Liability of Agent....................................................122
9.04 Reliance by Agent.....................................................123
9.05 Notice of Default.....................................................124
9.06 Credit Decision.......................................................125
9.07 Indemnification.......................................................126
9.08 Agent in Individual Capacity..........................................127
9.09 Successor Agent.......................................................128
9.10 Withholding Tax.......................................................129
ARTICLE X
MISCELLANEOUS.............................130
10.01 Amendments and Waivers................................................130
10.02 Notices...............................................................132
10.03 No Waiver; Cumulative Remedies........................................134
10.04 Costs and Expenses....................................................134
10.05 Indemnity.............................................................135
Section Page
10.06 Payments Set Aside...............................................137
10.07 Successors and Assigns...........................................138
10.08 Assignments, Participations, etc.................................138
10.09 Set-off..........................................................144
10.10 Notification of Addresses, Lending Offices, Etc..................145
10.11 Counterparts.....................................................145
10.12 Severability.....................................................145
10.13 No Third Parties Benefited.......................................146
10.14 Governing Law and Jurisdiction...................................146
10.15 Waiver of Jury Trial.............................................147
10.16 Entire Agreement.................................................148
SCHEDULES
Schedule 2.01 List of Commitments and Pro Rata Shares
Schedule 5.05 Litigation Schedule
Schedule 5.12 Environmental Schedule
Schedule 5.16 List of Subsidiaries and Material Equity
Investments
Schedule 7.01 Existing Liens
Schedule 10.02 Offshore and Domestic Lending Offices,
Addresses for Notices
EXHIBITS
Exhibit A Form of Compliance Certificate
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Invitation for Competitive Bids
Exhibit E Form of Competitive Bid Request
Exhibit F Form of Competitive Bid
Exhibit G Form of Bid Loan Note
Exhibit H Form of Bank's Response to Pro Rata Commitment
Increase Request
Exhibit I Form of Supplement for Non-Pro Rata Commitment
Increase (Existing Bank)
Exhibit J Form of Supplement for Commitment Increase (New
Bank)
Exhibit K Form of Opinion of Counsel to the Company
Exhibit L Form of Assignment and Acceptance
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July
8, 1997, among Deluxe Corporation, a Minnesota corporation (the "Company"), the
several financial institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), and Bank of America
National Trust and Savings Association, as agent for the Banks.
WHEREAS, the Company, the Banks and the Agent are parties to that
certain Credit Agreement dated as of December 2, 1994 (the "Existing
Agreement");
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 parties agree that the Existing Agreement
shall, effective as of the Closing Date, be amended and restated in its entirety
as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in subsection
2.06(c).
"Absolute Rate Auction" means a solicitation of Competitive
Bids setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest
at a rate determined with reference to the Absolute Rate.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any material part of the business and operations or
division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person
(other than a Person that is a Subsidiary) provided that the Company or
a Subsidiary is the surviving entity.
"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, by contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 9.09.
"Agent-Related Persons" means BofA in its capacity as agent
and any successor 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 Schedule 10.02 hereto in relation to the Agent, or such other
address as the Agent may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means
(i) with respect to Base Rate Committed Loans,
0%; and
(ii) with respect to Offshore Rate Committed
Loans,
(A) 0.115% if Level I Status exists on
any day,
(B) 0.135% if Level II Status exists on
any day,
(C) 0.150% if Level III Status exists
on any day,
(D) 0.200% if Level IV Status exists on
any day,
(E) 0.275% if Level V Status exists on
any day, and
(F) 0.425% if Level VI Status exists on
any day.
"Arranger" means BancAmerica Securities, Inc., a Delaware
corporation.
"Assignee" has the meaning specified in subsection
10.08(a).
"Assignment and Acceptance" has the meaning specified in
Section 10.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
"Bank" has the meaning specified in the introductory
clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference rate." The "reference
rate" 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. 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
2.05, which may be a LIBOR 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 (in the case of Committed Loans) made to the Company on
the same day by one or more of the Banks under Article II, and may be a
Committed Borrowing or a Bid Borrowing and, other than in the case of
Base Rate Committed Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in 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.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or waived by
all Banks (or, in the case of subsection 4.01(e), waived by the Person
entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Committed Borrowing" means a Borrowing hereunder consisting
of Committed Loans made on the same day by the Banks ratably according
to their respective Pro Rata Shares and, in the case of Offshore Rate
Committed Loans, having the same Interest Periods.
"Committed Loan" means a Loan by a Bank to the Company under
Section 2.01, 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 2.06(c).
"Competitive Bid Request" has the meaning specified in
subsection 2.06(a).
"Compliance Certificate" means a certificate substantially in
the form of Exhibit A.
"Contingent Obligation" means, as applied to any Person, any
material direct or indirect liability of that Person with respect to
any Indebtedness, lease, dividend, Surety Instrument or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person, 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; in each
case (a), (b), (c) or (d), including arrangements wherein the rights
and remedies of the holder of the primary obligation are limited to
repossession or sale of certain property of such Person. The amount of
any Contingent
Obligation shall be deemed equal to the lesser of (x) the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or if indeterminable,
the maximum reasonably anticipated liability in respect thereof, or (y)
any limitation of such Contingent Obligation contained in the
instrument or agreement creating such Contingent Obligation.
"Contractual Obligation" means, as to any Person, any
provision either 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 and which in either case
is material to such Person.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Committed Loans of one Type to
another Type, or (b) continues Committed Loans of the same Type, but
with a new Interest Period, in the case of Committed Loans having
Interest Periods expiring on such date.
"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.
"Eligible Assignee" means (i) 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 $500,000,000; (ii) 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 political subdivision of any such country, and
having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located in
the United States; or (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of a Bank,
(B) a Subsidiary of a Person of which a Bank is a Subsidiary, or (C) a
Person of which a Bank is a Subsidiary; provided that any such bank or
Person shall also have senior unsecured long-term debt ratings which
are rated at least A- (or the equivalent) as publicly announced by S&P
or A3 (or the equivalent) as publicly announced by ▇▇▇▇▇'▇.
"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.
"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, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"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 of, or the commencement of
proceedings by the PBGC to terminate, a Pension Plan or Multiemployer
Plan; (e) an event or condition which might 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.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"Existing Agreement" has the meaning specified in the
introductory clause hereto.
"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 Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.12(a).
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Funded Debt" means as of the date of any determination all
outstanding Indebtedness of the Company and its
consolidated Subsidiaries which matures more than one (1) year after
the incurrence thereof or is extendable, renewable or refundable, at
the option of the obligor, to a date more than one (1) year after the
incurrence thereof.
"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 U.S. accounting
profession).
"Governmental Authority" means any nation or government, any
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
governmental regulatory authority or agency such as the FDIC, FRB, IRS
or SEC.
"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 on ordinary terms);
(c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) 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; (e) all recourse 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; and (f) all obligations with respect to capital leases;
provided, however, that the term "Indebtedness" shall not include
non-recourse obligations or indebtedness of any kind; and provided
further, however, that the term "Indebtedness" shall not include any
such obligations or indebtedness owing by the Company or any Subsidiary
to the Company or any Subsidiary.
"Indemnified Liabilities" has the meaning specified in Section
10.05. "Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
"Insolvency Proceeding" means with respect to a Person (a) any
case, action or proceeding 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, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case undertaken under
U.S. Federal, state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Committed Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Committed Loan, the
last Business Day of each calendar quarter and each date such Committed
Loan is converted into another Type of Committed Loan, provided,
however, that (a) if any Interest Period for an Offshore Rate Committed
Loan exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment Date
thereafter is also an Interest Payment Date, and (b) as to any Bid
Loan, such 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 shall also be Interest Payment
Dates.
"Interest Period" means, (a) as to any Offshore Rate Committed
Loan, the period commencing on the Business Day such
Loan is disbursed, or on the Conversion/Continuation Date on which the
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 or Notice of
Conversion/Continuation, as the case may be; (b) as to any LIBOR Bid
Loan, the period commencing on the Business Day such Loan is disbursed
and ending on the date one, two, three, six, nine or twelve months
thereafter as selected by the Company in the applicable Competitive Bid
Request and agreed to by the applicable Bid Loan Lender(s); and (c) as
to any Absolute Rate Bid Loan, a period of not less than 7 days and not
more than 365 days as selected by the Company in the applicable
Competitive Bid Request and agreed to by the applicable Bid Loan
Lender(s);
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following 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 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 for any Loan shall extend
beyond the Revolving Termination Date.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit D.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lending Office" means, as 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, on Schedule
10.02, or such other office or offices as such Bank may from time to
time notify the Company and the Agent.
"Knowledge" means the actual knowledge of the Company's
Responsible Officer.
"Level I Status" exists at any date if, at such date the
Company's senior unsecured long-term debt ratings are rated either AA-
or higher (or the equivalent) as publicly announced by S&P or Aa3 or
higher (or the equivalent) as publicly announced by Moody's.
"Level II Status" exists at any date if, at such date (i) the
Company's senior unsecured long-term debt ratings are rated either A+
(or the equivalent) as publicly announced by S&P or A1 (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status
does not exist.
"Level III Status" exists at any date if, at such date (i) the
Company's senior unsecured long-term debt ratings are rated either A-
or higher (or the equivalent) as publicly announced by S&P or A3 or
higher (or the equivalent) as publicly announced by Moody's and (ii)
Level I Status and Level II Status do not exist.
"Level IV Status" exists at any date if, at such date (i) the
Company's senior unsecured long-term debt ratings are rated either BBB
or higher (or the equivalent) as publicly announced by S&P or Baa2 or
higher (or the equivalent) as
publicly announced by Moody's and (ii) Level I Status, Level II Status
and Level III Status do not exist.
"Level V Status" exists at any date if, at such date (i) the
Company's senior unsecured long-term debt ratings are rated either BBB-
(or the equivalent) as publicly announced by S&P or Baa3 (or the
equivalent) as publicly announced by Moody's and (ii) Level I Status,
Level II Status, Level III Status and Level IV Status do not exist.
"Level VI Status" exists at any date if, at such date (i) the
Company's senior unsecured long-term debt ratings are both rated lower
than BBB- (or the equivalent) as publicly announced by S&P and lower
than Baa3 (or the equivalent) as publicly announced by Moody's, or (ii)
the Company's senior unsecured long-term debt is unrated by both S&P
and Moody's.
"LIBO Rate" means, for any Interest Period with respect to a
LIBOR Bid Loan or Offshore Rate Committed Loan the average of the per
annum LIBO rates displayed on the Reuters Screen LIBO Page for the
relevant Interest Period, on the day which is two Business Days prior
to the first day of the proposed Interest Period; provided that in the
event the Reuters Screen LIBO Page is not available on any day, then
"LIBO Rate" shall mean the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded
upward to the nearest 1/16th of 1%) of the rates of interest per annum
notified to the Agent by each Reference Bank as the rate of interest at
which dollar deposits in the approximate amount of, in the case of
LIBOR Bid Loans, the LIBOR 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, continued or converted, and
having a maturity comparable to such Interest Period, would be offered
by such Reference Bank to major banks in the London interbank market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.
"LIBOR Auction" means a solicitation of Competitive Bids
setting forth a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a
rate based upon the LIBO Rate.
"LIBOR Bid Margin" has the meaning specified in subsection
2.06(c)(ii)(C).
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential
arrangement of any kind or nature whatsoever in respect of any property
(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, any financing lease having substantially
the same economic effect as any of the foregoing, or the filing of any
financing statement signed by and naming the owner of the asset to
which such lien relates as debtor, under the Uniform Commercial Code or
any comparable law), but not including the interest of a lessor under
an operating lease.
"Loan" means an extension of credit by a Bank to the Company
under Article II, and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letter and all other documents delivered to the Agent or any Bank in
connection herewith.
"Majority Banks" means (a) at any time prior to the Revolving
Termination Date, Banks then holding at least 51% of the Commitments,
and (b) otherwise, Banks then holding at least 51% of the then
aggregate unpaid principal amount of the Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the financial condition of the
Company and its Subsidiaries taken as a whole; or (b) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Company of this Agreement or the Notes.
"Material Subsidiary" means, at any time, any Subsidiary
having at such time either (i) total (gross) revenues for the preceding
four fiscal quarter period in excess of 20% of total (gross) revenues
of the Company and its consolidated Subsidiaries for such period or
(ii) total assets, as of the last day of the preceding fiscal quarter,
having a net book value in excess of 20% of the total assets of the
Company and its consolidated Subsidiaries as of such day, in each case,
based upon the Company's most recent annual or quarterly financial
statements delivered to the Agent under Section 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, a division of Dun &
Bradstreet Corporation.
"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 in substantially the form
of Exhibit B.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit C.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under this Agreement and the
Notes, owing by the Company to any Bank, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing
or hereafter arising.
"Offshore Rate Committed Loan" means any Committed Loan that
bears interest based on the LIBO Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore
Rate Committed Loan.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation.
"Other Taxes" means 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.
"Participant" has the meaning specified in subsection
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority 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 sponsors,
maintains, or to which it 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 (5) plan years.
"Permitted Liens" has the meaning specified in Section 7.01.
"Person" means an individual, partnership, corporation,
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 sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
combined Commitments of all Banks.
"Reference Banks" means BofA, The Bank of New York and
Wachovia Bank, N.A.
"Replacement Bank" has the meaning specified in Section 3.08.
"Reportable Event" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations 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
an 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 any of the following officers of
the Company: the chief executive officer, the chief operating officer,
the president, the chief financial officer, the treasurer, the
assistant treasurer, or any other officer of the Company having similar
authority and responsibility to any of the foregoing.
"Reuters Screen LIBO Page" means the display designated as
"LIBO" on the Reuters Monitor Money Rates Service (or such other page
as may replace the LIBO Page on that service for the purpose of
displaying London interbank offered quotations of major banks).
"Revolving Termination Date" means the earlier to occur of:
(a) July 7, 2002; and
(b) the date on which the Commitments terminate in
accordance with Section 2.07 or 8.02 of this Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than
60% of the voting stock 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.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Taxes" means 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) as are imposed
on or measured by each Bank's net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a lending office;
provided, however, that "Taxes" shall be limited to taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, which are imposed by U.S. Governmental Authorities
unless the Company makes any payments hereunder with funds derived from
sources outside the United States.
"Total Capitalization" means, as of any date of determination,
the sum of (i) Funded Debt, and (ii) the sum of
the amounts set forth on the consolidated balance sheet of the Company
and its consolidated Subsidiaries as shareholders' equity as determined
in accordance with GAAP.
"Type" has the meaning specified in the definition of
"Committed Loan."
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"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 or similar nominal 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) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. 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.
(c) Certain Common Terms.
(i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance obligation
hereunder shall be stated to be due or required to be satisfied on a
day other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. 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." If any provision of this Agreement refers to any action
taken or to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be interpreted to encompass any and
all reasonable means, direct or indirect, of taking, or not taking,
such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements 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.
(f) Laws. 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.
(g) Captions. The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(h) Independence of Provisions. The parties acknowledge that
this Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters, and that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly stated to
the contrary in this Agreement.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and
all financial computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
THE CREDITS
2.01 The Revolving Credit. Each Bank severally agrees, on the terms and
conditions set forth herein, to make Committed Loans to the Company from time to
time on any Business Day during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount as the same may
be increased under Section 2.09 or reduced under Section 2.07 or changed as a
result of one or more assignments under Section 10.08, the Bank's "Commitment");
provided, however, that, the aggregate principal amount of all outstanding
Committed Loans, together with the aggregate principal amount of all Bid Loans
outstanding, shall not at any time exceed the combined Commitments. Within the
limits of each Bank's Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01, prepay under Section
2.08 and reborrow under this Section 2.01.
2.02 Loan Accounts; Bid Loan Notes.
(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 prima facie evidence of the amount of
the 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 Loans.
(b) The Bid Loans made by any Bank shall be evidenced by a
promissory note executed by the Company (a "Bid Loan Note") (each such
Note to be substantially in the form of Exhibit G). Each Bank shall
endorse on the schedule annexed to its Note the date, amount and
maturity of each 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 Note and each
Bank's record shall be prima facie evidence of the amount of each such
Loan; provided, however, that the failure of a Bank to make, or an
error in making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the Company hereunder or
under any such Note to such Bank.
2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a
Notice of Borrowing (which notice must be received by the Agent (i)
prior to 9:00 a.m. (San Francisco
time) three Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Committed Loans; and (ii) prior to 9:30 a.m. (San
Francisco time) on the requested Borrowing Date, in the case of Base
Rate Committed Loans, specifying:
(A) the amount of the Committed Borrowing,
which shall be in an aggregate minimum amount of
$5,000,000 or any multiple of $1,000,000 in excess
thereof;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Committed Loans comprising
the Committed Borrowing; and
(D) if the Committed Loans consist of
Offshore Rate Committed Loans, 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 comprised of Offshore
Rate Committed Loans, such Interest Period shall be
one month.
(b) The Agent will promptly notify each Bank of its receipt of
any Notice of Borrowing and of the amount of such Bank's Pro Rata Share
of that Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Committed Borrowing available to the Agent for the account of the
Company at the Agent's Payment Office by 11:00 a.m. (San Francisco
time) on the Borrowing Date requested by the Company in funds
immediately available to the Agent. Any such amount which is received
later than 11:00 a.m. (San Francisco time) shall be deemed to have been
received on the immediately succeeding Business Day. The proceeds of
all such Committed Loans will then be made available to the Company by
the Agent by wire transfer in accordance with written instructions
provided to the Agent by the Company of like funds as received by the
Agent.
(d) After giving effect to any Committed Borrowing, there may
not be more than eight (8) different Interest Periods in effect in
respect of all Committed Loans and Bid Loans together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The Company may, upon irrevocable written notice to the
Agent in accordance with subsection 2.04(b):
(i) 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 Borrowings (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 Borrowings of the other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Committed Borrowings 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, that if at any time the aggregate amount of Offshore Rate
Committed Loans in respect of any Committed Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less than
$1,000,000, 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 to be received by the Agent not later than (i) 9:00 a.m.
(San Francisco time) at least three Business Days in advance of the
Conversion/Continuation Date, if the Committed Borrowings are to be
converted into or continued as Offshore Rate Committed Loans; and (ii)
9:30 a.m. (San Francisco time) on the Conversion/Continuation Date, if
the Loans are to be converted into Base Rate Committed Loans,
specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Committed Loans
to be converted or continued;
(C) the Type of Committed Loans resulting
from the proposed conversion or continuation; and
(D) 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
timely a new Interest Period to be applicable to such Loans in
accordance with Section 2.04(b), or if any Event of Default then
exists, 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 Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of
a Notice of Conversion/ Continuation, 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 ratably 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 otherwise agree, during the
existence of an Event of Default, the Company may not elect to have a
Committed Loan made as, converted into or continued as, an Offshore
Rate Committed Loan.
(f) After giving effect to any conversion or continuation of
Committed Loans, there may not be more than
eight (8) different Interest Periods in effect in respect of all
Committed Loans and Bid Loans together then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings, each Bank
severally agrees that the Company may, as set forth in Section 2.06, from time
to time request the Banks prior to the Revolving 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 exceed the combined Commitments; or (b) the
number of Interest Periods for Bid Loans then outstanding plus the number of
Interest Periods for Committed Loans then outstanding exceed eight (8).
2.06 Procedure for Bid Borrowings. The Company may, as set forth in
this Section, request the Agent to, or itself may, solicit offers from all the
Banks to make Bid Loans.
(a) When the Company wishes to request the Banks to submit
offers to make Bid Loans hereunder and have the Agent solicit such
offers, it shall transmit to the Agent by telephone call followed
promptly by facsimile transmission a
notice in substantially the form of Exhibit E (a "Competitive Bid
Request") so as to be received no later than 8:30 a.m. (San Francisco
time) (x) four Business Days prior to the date of a proposed Bid
Borrowing in the case of a LIBOR Auction, or (y) one Business Day prior
to the date of a proposed Bid Borrowing in the case of an Absolute Rate
Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $5,000,000 or in multiples
of $1,000,000 in excess thereof;
(iii) whether the Competitive Bids requested are to
be for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
"Interest Period" herein.
Subject to subsection 2.06(c), the Company may not itself request (and
may not request the Agent to solicit offers for) 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 2.06. If the Company itself is soliciting offers to make
Competitive Bids, the Company shall send to the Banks (with a copy to
the Agent) by facsimile transmission an Invitation for Competitive
Bids, so as to be received by each Bank no later than the times
specified in Section 2.06(a) for transmission of a Competitive Bid
Request from the Company to the Agent.
(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 2.06(c) and must be submitted to
the Agent or the Company, as the case may be, by facsimile transmission
at its offices specified in or pursuant to Section 10.02 not later than
(1) 6:30 a.m. (San Francisco time) three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (2) 6:30
a.m. (San Francisco time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction;
provided that in any instance where the Agent has received a
Competitive Bid Request, Competitive Bids submitted by BofA (or any
Affiliate of BofA) 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 (A) 6:15 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (B) 6:15 a.m. (San Francisco time) on the proposed
date of Borrowing, in the case of an Absolute Rate Auction. In the case
where the Company itself has solicited offers for Competitive Bids, the
Company shall promptly send to the Agent, by facsimile transmission, a
copy of each Competitive Bid received by it (including any that are to
be disregarded pursuant to Section 2.06(c)(iii)).
(ii) Each Competitive Bid shall be in substantially
the form of Exhibit F, 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 (x) may be equal to, greater than or
less than the Commitment of the quoting Bank, (y)
must be $5,000,000 or in multiples of
$1,000,000 in excess thereof, and (z) may not exceed
the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects a LIBOR
Auction, the margin above or below the LIBO Rate (the
"LIBOR 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 LIBO
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 the Interest Period applicable thereto; 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 F 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) In any instance where the Agent has sent Competitive Bid
Requests, promptly on receipt and not later than 7:00 a.m. (San
Francisco time) three Business Days prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or 7:00 a.m. (San Francisco
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 2.06(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 2.06(c). The Agent's
notice to the Company shall specify (1) the aggregate principal amount
of Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Request; (2) the
respective principal amounts and LIBOR Bid Margins or Absolute Rates,
as the case may be, so offered; and (3) any other information regarding
such Competitive Bid reasonably requested by the Company. Subject only
to the provisions of Sections 3.02, 3.05 and 4.02 hereof and the
provisions of this subsection (d), any Competitive Bid shall be
irrevocable except with the written consent of, where the Agent has
solicited offers to make Bid Loans, the Agent given on the written
instructions of the Company or, otherwise, the Company.
(e) Not later than 7:45 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of a
LIBOR Auction, or 7:45 a.m. (San Francisco time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction, the Company
(whether or not it has directly solicited offers to make Competitive
Bids) shall notify the Agent, in writing and in a form reasonably
acceptable to the
Agent, of its acceptance or non-acceptance of the offers received by it
pursuant to subsection 2.06(c) or notified to it pursuant to subsection
2.06(d). The Company shall be under no obligation to accept any offer
and may choose to accept or reject some or 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 that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in
the related Competitive Bid Request or, if the Company
solicited the related offers, the related Invitation for
Competitive Bids;
(ii) the principal amount of each Bid Borrowing must
be $5,000,000 or in any multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on the
basis of ascending LIBOR 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 2.06(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
LIBOR 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 or the Company, as the case may be, among
such Banks (in such multiples, not less than $1,000,000, as the Agent
or the Company, as the case may be, may deem appropriate) as nearly as
practicable in proportion to the aggregate principal amounts of such
offers. Determination by the Agent or the Company, as the case may be,
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 2.06(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 11:00 a.m. (San Francisco time) in the case
of Absolute Rate Bid Loans, and by
11:00 a.m. (San Francisco time) in the case of LIBOR Bid
Loans, 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 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 4.02 hereof are satisfied, the Bank or Banks whose
offers the Company has accepted will fund each Bid Loan so accepted.
Nothing in this Section 2.06 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.
2.07 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $5,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any payments or prepayments of
Committed Loans made on the effective date thereof, the then-outstanding
principal amount of the Loans would exceed the amount of the combined
Commitments then in effect. The Agent shall promptly notify the Banks of any
such termination or reduction. Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. 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.
2.08 Optional Prepayments. (a) Subject to Section 3.04, the Company
may, at any time or from time to time, upon not less than
three Business Days' irrevocable notice to the Agent, in the case of Offshore
Rate Committed Loans, or upon not less than one Business Day's irrevocable
notice to the Agent, in the case of Base Rate Committed Loans, ratably prepay
such Loans in whole or in part, in minimum amounts of $5,000,000 or any multiple
of $1,000,000 in excess thereof. Such notice of prepayment shall specify the
date and amount of such prepayment and the Type(s) of Committed Loans to be
prepaid. The Agent will promptly notify each Bank of its receipt of any such
notice, and of such Bank's Pro Rata Share of such prepayment. 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; provided that if the Company
shall fail to make any such payment on the date specified therein, such failure
shall not constitute an Event of Default hereunder, and if the Committed Loan is
a Base Rate Committed Loan such Loan shall continue as if such prepayment notice
had not been given, and if the Committed Loan is an Offshore Rate Committed Loan
such Loan shall be automatically converted to a Base Rate Committed Loan as of
the date specified in such notice.
(b) Bid Loans may not be voluntarily prepaid.
2.09 Optional Increase in Commitments. At any time the Company may
request the Banks by written notice to the Agent, to increase the aggregate
Commitments, which notice shall be accompanied by the resolutions of the board
of directors of the Company approving such increase and certified by the
Secretary or an Assistant Secretary of the Company, provided that in no event
shall the aggregate Commitments exceed $300,000,000 without the written consent
of all the Banks. The Agent shall transmit such request to each Bank within one
Business Day. Each Bank will have the option, in its sole discretion, to
subscribe for its proportionate share of such requested increase, according to
its then existing Pro Rata Share. The Banks shall respond in writing to the
Company's request through the Agent within fifteen (15) Business Days by
submitting a supplement in the form of Exhibit H. Any Bank not responding within
fifteen (15) Business Days shall be deemed to have declined the request. At the
option of the Company, any part of the increase not so subscribed may be
assumed, within ten (10) Business Days of the Banks' response, by one or more
existing Banks or assumed by other banks meeting the qualifications of an
Eligible Assignee acceptable to the Agent and the Company, which consent of the
Agent shall not be unreasonably withheld, upon submission of a supplement in the
form of Exhibit I, in the case of an existing Bank, or Exhibit J, in the case of
a new party to this Agreement, and Schedule 2.01 shall be amended accordingly.
In order to maintain Committed Loans in accordance with each Bank's Pro Rata
Share at all times, a reallocation of Commitments as a
result of a non-pro rata subscription to the increase in the Commitments may
require a prepayment of Loans by the Company (subject, without limitation, to
Section 3.04(d) hereof).
2.10 Repayment. The Company shall repay to the Banks on the Revolving
Termination Date the aggregate principal amount of Loans outstanding on such
date. The Company shall repay each Offshore Rate Committed Loan and each Bid
Loan on the last day of the relevant Interest Period.
2.11 Interest.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate
per annum equal to the LIBO Rate or the Base Rate, as the case may be
(and subject to the Company's right to convert to other Types of Loans
under Section 2.04), plus the Applicable Margin. 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 LIBO Rate plus
(or minus) the LIBOR 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 under Section
2.08 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof.
(c) Notwithstanding subsection (a) of this Section, after
acceleration or the occurrence and continuation of an Event of Default
under Section 8.01(a) or (c), or commencing five (5) days after the
occurrence and continuation of any other Event of Default, 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
outstanding Obligations, at a rate per annum which is determined by
adding 2% per annum to the Applicable Margin then in effect for such
Loans and, in the case of Obligations not subject to an Applicable
Margin, at a rate per annum equal to the Base Rate plus 2%; provided,
however, that, on and after the expiration of any Interest Period
applicable to any Offshore Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration, the principal
amount of such Loan shall, after the expiration of such Interest Period
and during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base Rate
plus 2%. Interest payable under this subsection 2.11(c) shall be
payable on demand by the Majority Banks.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank hereunder shall be
subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder, to
the extent (but only to the extent) that contracting for or receiving
such payment by such Bank would be contrary to the provisions of any
law applicable to such Bank limiting the highest rate of interest that
may be lawfully contracted for, charged or received by such Bank, and
in such event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
2.12 Fees.
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and
shall pay agency (including bid agency) fees and other sums to the
Agent for the Agent's own account, as required by the letter agreement
("Fee Letter") between the Company and the Arranger and Agent dated
April 16, 1997.
(b) Facility Fees. The Company shall pay to the Agent for the
account of each Bank a facility fee on the entire portion of such
Bank's Commitment (whether utilized or unutilized), computed on a
quarterly basis in arrears on the last Business Day of each calendar
quarter, equal to (i) 0.060% per annum if Level I Status exists, (ii)
0.065% per annum if Level II Status exists, (iii) 0.075% per annum if
Level III Status exists, (iv) 0.100% per annum if Level IV Status
exists, (v) 0.175% per annum if Level V Status exists, and (vi) 0.200%
per annum if Level VI Status exists. Such facility fee shall accrue
from the Closing Date to the Revolving Termination Date and shall be
due and payable quarterly in arrears on the last Business Day of each
calendar quarter commencing on September 30, 1997 through the Revolving
Termination Date, with the final payment to be made on the Revolving
Termination Date; provided that, in connection with any reduction or
termination of Commitments under Section 2.07, the accrued facility fee
calculated for the period ending on such date shall also be paid on the
date of such reduction or termination, with the following quarterly
payment being calculated on the basis of the period from such reduction
or termination date to such quarterly payment date. The facility fees
provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which
one or more conditions in Article IV are not met.
2.13 Computation of Fees and Interest.
(a) All computations of facility fees under Section 2.12 (b)
and interest for Base Rate Committed Loans when 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 interest shall be
made on the basis of a 360-day year and actual days elapsed (which
results in more interest being paid than if computed on the basis of a
365-day year). 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) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Company and the Banks in the absence
of manifest error. The Agent will, at the request of the Company or any
Bank, deliver to the Company or the Bank, as the case may be, a
statement showing the quotations used by the Agent in determining any
interest rate.
(c) If any Reference Bank's Commitment terminates (other than
on termination of all the Commitments), or for any reason whatsoever
the Reference Bank ceases to be a Bank hereunder, that Reference Bank
shall thereupon cease to be a Reference Bank. In such event, the
Company shall promptly designate a replacement Reference Bank from
among the Banks with the consent of the Agent (which consent shall not
be unreasonably withheld).
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated
hereby. If any of the Reference Banks fails to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the
basis of the quotations of the remaining Reference Bank(s).
(e) The Agent will, with reasonable promptness, notify the
Company and the Banks of each determination of the LIBO Rate; provided
that any failure to do so shall not relieve the Company of any
liability hereunder or provide the basis for any Event of Default or
any claim against the Agent. Any change in the interest rate payable on
the Offshore Rate Committed Loans or in the facility fees payable under
Section 2.12(b) resulting from a change in the Company's senior
unsecured long-term debt ratings shall become effective and shall apply
to any such Loans then outstanding or to such fees as of the opening of
business on the day on which such change in the Company's debt ratings
becomes effective. The Agent will with reasonable promptness notify the
Company and the Banks of the effective date and the amount of each such
change, provided that any failure to do so shall not relieve the
Company of any liability hereunder or provide the basis for any Event
of Default or any claim against the Agent.
2.14 Payments by the Company.
(a) All payments to be made by the Company shall be made
without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall
be made to the Agent for the account of the Banks at the Agent's
Payment Office, and shall be made in dollars and in immediately
available funds, no later than 12:00 noon (San Francisco time) on the
date specified herein. The Agent will promptly distribute to each Bank
its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received
by the Agent later than 12:00 noon (San Francisco time) shall be deemed
to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following
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.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks that the Company will
not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the Agent on
such date in immediately available funds and the Agent may (but shall
not be so
required), in reliance upon such assumption, distribute to each Bank on
such due date an amount equal to the amount then due such Bank. If and
to the extent the Company has not 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 at the Federal
Funds Rate for each day from the date such amount is distributed to
such Bank until the date repaid.
2.15 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior
to the Closing Date or, with respect to any Borrowing after the Closing
Date, prior to 11:00 a.m. (San Francisco time) on the date of such
Borrowing, that such Bank will not make available as and when required
hereunder to the Agent for the account of the Company the amount of
that Bank's Loan comprising a Borrowing, 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), 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
Business
Day following such Borrowing Date make such amount available to the
Agent, together with interest at the Federal Funds Rate for each day
during such period. A notice of the Agent submitted to any Bank with
respect to amounts owing under this subsection (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 date of
Borrowing for all purposes of this Agreement. If such amount is not
made available to the Agent on the Business Day following the Borrowing
Date, the Agent will 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 Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Committed Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make the
Committed Loan to be made by such other Bank on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided in
Section 3.08 or 10.08 hereof, any Bank shall obtain on
account of the Committed Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its Pro Rata Share, such Bank shall immediately (a) notify the Agent
of such fact, and (b) purchase from the other Banks such participations in the
Committed Loans made by them as shall be necessary to cause such purchasing Bank
to share the excess payment pro rata with each of them; provided, however, that
if all or any portion of such 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 ratable share (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 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 under this Section and will in each
case notify the Banks following any such purchases or repayments. Any Bank
having outstanding both
Committed Loans and Bid Loans at any time a right of set-off is exercised by
such Bank shall apply the proceeds of such set-off first to such Bank's
Committed Loans, until its Committed Loans are reduced to zero, and thereafter
to its Bid Loans.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Subject to subsection 3.01(f), any and all payments by
the Company to each Bank or the Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Company shall pay all Other Taxes.
(b) Subject to subsection 3.01(f), the Company agrees to
indemnify and hold harmless each 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) paid by the
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 after the date the Bank or the Agent makes written
demand therefor. If the Company in good faith determines that any such
Taxes or Other Taxes for which
indemnification has been sought hereunder are not due or owing or
otherwise correctly assessed, the Bank or Agent at the request of the
Company, or the Company at the election of the Bank or Agent following
any such request, in either case at the expense of the Company, shall
by appropriate means file for a refund or otherwise contest the payment
of such Taxes or Other Taxes, provided that any such filing or contest
does not result in any penalty, lien or other liability to the Bank or
Agent for which the Company has not provided a satisfactory undertaking
to indemnify and hold the Bank or Agent harmless. The Bank and the
Agent agree to provide reasonable cooperation to the Company in
connection with any such filing or contest, at the Company's expense
and, if the Company has paid any such Tax or Other Tax or compensated
the Bank or Agent with respect thereto, any refund thereof shall belong
and be remitted to the Company.
(c) 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(f):
(i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section)
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
or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) the Company shall also pay to each Bank or the
Agent for the account of such Bank, at the time interest is
paid, all additional amounts which the respective Bank
specifies as necessary to preserve the after-tax yield the
Bank would have received if such Taxes or Other Taxes had not
been imposed.
(d) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish the Agent
the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to the Agent.
(e) 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 that:
(i) it shall, 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) deliver to the Company through
the Agent two accurate and complete signed originals of
Internal Revenue Service Form 4224 or any successor thereto
("Form 4224"), or two accurate and complete signed originals
of Internal Revenue Service Form 1001 or any successor thereto
("Form 1001"), as appropriate, in each case indicating that
the Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal
income tax;
(ii) if at any time the Bank makes any changes
necessitating a new Form 4224 or Form 1001, it shall with
reasonable promptness deliver to the Company through the Agent
in replacement for, or in addition to, the forms previously
delivered by it hereunder, two accurate and complete signed
originals of Form 4224; or two accurate and complete signed
originals of Form 1001, as
appropriate, in each case indicating that the Bank is on the
date of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free from
withholding of United States Federal income tax;
(iii) it shall, before or promptly after the
occurrence of any event (including the passing of time but
excluding any event mentioned in (ii) above) requiring a
change in or renewal of the most recent Form 4224 or Form 1001
previously delivered by such Bank, deliver to the Company
through the Agent two accurate and complete original signed
copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's or the
Agent's reasonable request to that effect, deliver to the
Company or the Agent (as the case may be) such other forms or
similar documentation as may be required from time to time by
any applicable law, treaty, rule or regulation in order to
establish such Bank's tax status for withholding purposes.
(f) The Company will not be required to indemnify, hold
harmless or pay any additional amounts in respect of United
States Federal income tax pursuant to subsection 3.01(c) to any Bank
for the account of any Lending Office of such Bank:
(i) if the obligation to indemnify, hold harmless or
pay such additional amounts would not have arisen but for a
failure by such Bank to comply with its obligations (if any)
under subsection 3.01(e) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company
a Form 4224 in respect of such Lending Office pursuant to
subsection 3.01(e), 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
Form 4224; or
(iii) if the Bank shall have delivered to the Company
a Form 1001 in respect of such Lending Office pursuant to
subsection 3.01(e), 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 any applicable tax treaty or regulations or in
the official interpretation of any such law, treaty 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
Form 1001.
(g) If the Company is required to pay additional amounts to
any Bank or the Agent pursuant to subsection (c) of this Section, then
such Bank shall use 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.
(h) Each Bank agrees to promptly notify the Company of the
first written assessment of any Taxes payable by the Company hereunder
which is received by such Bank, provided that failure to give such
notice shall not in any way prejudice the Bank's rights under Section
3.01 hereof. The Company shall not be obligated to pay any Taxes under
Section 3.01 which are assessed against any Bank if the statute of
limitations applicable thereto (as same may be extended from time to
time by agreement between such Bank and the relevant Governmental
Authority) has lapsed. Additionally, the Company shall not be obligated
to pay any penalties, interest, additions to tax or expenses with
respect to any final assessment of Taxes against any Bank (i) unless
such Bank shall have first notified the Company in writing of such
final assessment, and (ii) which are attributable to periods exceeding
90 days prior to the date of receipt by the Company of such notice.
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 of any Requirement of Law, has made it
unlawful, or any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending
Office to make Offshore Rate Loans, then, on notice thereof by the Bank
to the Company through the Agent, any obligation of that Bank to make
additional Offshore Rate Loans (including in respect of any LIBOR 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 notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of
such fact and demand from such Bank (with a copy to the Agent), prepay
in full such Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon and amounts required under
Section 3.04, 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 Loan. If the Company is required to so
prepay any Offshore Rate Committed Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, and the
affected Bank shall lend to the Company, in the amount of such
repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Committed 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
Committed Loans shall be instead Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this Section,
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 in such Bank's reasonable
judgment.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the Closing Date or (ii) the compliance by that Bank
with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) after
the Closing Date, there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any Offshore Rate
Loans, then the Company shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be sent to the Agent),
pay to the Agent for the account of such Bank, additional amounts as
are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction after the Closing Date of any Capital Adequacy Regulation
, (ii) any change after the Closing Date in any Capital Adequacy
Regulation, (iii) any change after the Closing Date 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) compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any change in any Capital Adequacy Regulation
after the Closing Date, affects the amount of capital required to be
maintained by the Bank or any corporation controlling the Bank and
(taking into consideration such Bank's or such corporation's policies
with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment, loans, credits or obligations under this
Agreement, then, upon demand of such Bank to the Company through the
Agent, the Company shall pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the
Bank for such increase.
(c) The Company shall not be obligated to pay any amounts
under subsection 3.03(a) or (b) to any Bank (i) unless such Bank shall
have first notified the Company in writing that it intends to seek
compensation from the Company pursuant to such subsection, and (ii)
which are attributable to periods exceeding 90 days prior to the date
of receipt by the Company of such notice.
3.04 Funding Losses. The Company shall reimburse each Bank and hold
each Bank harmless from any direct loss or expense (but excluding any
consequential 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 required hereunder of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow a Bid Loan after the
Agent has notified a Bank pursuant to subsection 2.06(g)(i) that its
Competitive Bid has been accepted by the Company, or the failure of the
Company to borrow, continue or convert a Committed Loan after the
Company has given (or is deemed to have 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 in accordance with any notice delivered under Section
2.08;
(d) the prepayment (including pursuant to Section 2.08) or
payment after acceleration thereof following an Event of Default of any
Offshore Rate Loan or Absolute Rate Bid Loan on a day that is not the
last day of the relevant Interest Period; or
(e) the automatic conversion under the proviso contained in
Section 2.04(a) or under the proviso contained in Section 2.08 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;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Loans or from fees payable to terminate the deposits from which such
funds were obtained. For purposes of calculating amounts payable by the
Company to the Banks under this Section and under subsection 3.03(a),
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 LIBO Rate 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
Committed Loan is in fact so funded.
3.05 Inability to Determine Rates. If all of the Reference Banks
determine that for any reason adequate and reasonable means do not exist for
determining the LIBO Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan, or that the LIBO Rate applicable pursuant to
subsection 2.11(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 promptly so notify the Company and each Bank.
Thereafter, the obligation of the Banks to make additional Offshore Rate Loans
hereunder shall be suspended until the Agent upon the instruction of the
Majority Banks revokes such notice in writing. Upon receipt of such notice, the
Company without cost or expense may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Banks shall make, convert or continue the Committed Loans, as
proposed by the Company, in the amount specified in the applicable notice
submitted by the Company, but such Committed Loans shall be made, converted or
continued as Base Rate Committed Loans instead of Offshore Rate Committed Loans.
3.06 Reserves on Offshore Rate Committed Loans. The Company shall pay
to each Bank, as long as such Bank shall be required under regulations of the
FRB to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Offshore Rate Committed Loan equal to the actual costs of such reserves
allocated to such Committed Loan by the Bank (as reasonably determined by the
Bank), payable on each date on which interest is payable on such Committed Loan,
provided the Company shall have received at least 30 days' prior written notice
(with a copy to the Agent) of such additional interest from the Bank. If a Bank
fails
to give notice 30 days prior to the relevant Interest Payment Date, such
additional interest shall be payable 30 days from receipt of such notice.
3.07 Certificates of Banks. Any Bank claiming reimbursement or
compensation under this Article III shall deliver to the Company (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Bank hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error unless the Company shall have
notified such Bank of its objection to such certificate (with a copy to the
Agent) within 30 days of the Company's receipt of such claim.
3.08 Substitution of Banks. Upon the receipt by the Company from any
Bank (an "Affected Bank") of a claim for compensation under Section 3.01, 3.02
or 3.03, the Company may: (i) request the Affected Bank to use its reasonable
efforts to obtain a replacement bank or financial institution satisfactory to
the Company and meeting the qualifications of an Eligible Assignee to acquire
and assume all or a ratable part of all of such Affected Bank's Loans and
Commitment (a "Replacement Bank"); (ii) request one more of the other Banks to
acquire and assume all or part of such Affected Bank's Loans and Commitment (but
no other Bank shall be required to do so); or (iii) designate a Replacement
Bank. Any such designation of a Replacement Bank under clause (i) or (iii) shall
be subject to the prior written consent of the Agent (which consent
shall not be unreasonably withheld). Any transfer arising under this Section
3.08 shall comply with the requirements of Section 10.08 and on the date of
transfer the Affected Bank shall be entitled to all sums payable to it hereunder
on such date including, without limitation, outstanding principal, accrued
interest and fees, and other sums arising under the provisions of this
Agreement.
3.09 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 of Initial Loans. The obligation of each Bank to make
its initial Committed Loan hereunder, and to receive through the Agent the
initial Competitive Bid Request, is subject to and shall become effective when
the Agent shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agent and each Bank, and in
sufficient copies for each Bank:
(a) Credit Agreement; Notes. This Agreement (and a Bid Loan
Note for each Bank) properly executed;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of the Company authorizing the transactions
contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Company; and
(ii) 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, this Agreement, and all other
Loan Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) 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
(ii) a good standing certificate dated within five
(5) days of the Closing Date for the Company from the
Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation;
(d) Legal Opinions. An opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General
Counsel to the Company and addressed to the Agent and the Banks,
substantially in the form of Exhibit K;
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, including any such costs, fees and
expenses arising under or referenced in Section 2.12;
(f) Certificate. A certificate signed on behalf of the Company
by the Company's chief executive officer, chief financial officer or
treasurer, dated as of the Closing Date, stating that:
(i) 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;
(ii) no Default or Event of Default exists or would
result from the initial Borrowing; and
(iii) there has occurred since December 31, 1996, no
event or circumstance that has resulted or would reasonably be
expected to result in a Material Adverse Effect;
(g) Existing Agreement. Evidence to the satisfaction of the
Agent of the Company's payment of all amounts due under the Existing
Agreement;
(h) Other Documents. Such other approvals, opinions, documents
or materials as the Agent or any Bank may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Bank to make
any Committed Loan to be made by it, or any Bid Loan as to which the Company has
accepted the relevant Competitive Bid (including its initial Loan), or to
continue or convert any Committed Loan under Section 2.04 is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or Conversion/Continuation Date:
(a) Notice of Borrowing or Conversion/Continuation. As to any
Committed Loan, the Agent shall have received (with, in the case of the
initial Loan only, a copy for each Bank) a Notice of Borrowing or a
Notice of Conversion/Continuation, as applicable;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct
on and as of such Borrowing Date or Conversion/Continuation Date with
the same effect as if made
on and as of such Borrowing Date or Conversion/Continuation 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); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or continuation or
conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation and Competitive
Bid Request submitted by the Company hereunder shall constitute a representation
and warranty by the Company hereunder, as of the date of each such notice or
request and as of each Borrowing Date or Conversion/Continuation Date, as
applicable, that the conditions in 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. The Company and each of its
Material Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business (except where the failure to have any such governmental
license, authorization, consent or approval would not reasonably be
expected to have a Material Adverse Effect) and to execute, deliver,
and as to the Company only, to perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is 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 when the failure
to so qualify or be so licensed or in good standing would preclude it
from enforcing its rights with respect to any of its assets or expose
it to any liability, which in either case would reasonably be expected
to have a Material Adverse Effect; and
(d) is in all material respects in compliance with the
Requirements of Law except to the extent that the failure to do so
would not reasonably be expected to have 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 to
which the Company is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any 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 except where such conflict, breach,
contravention or Lien would not reasonably be expected to have a
Material Adverse Effect; or
(c) violate any Requirement of Law.
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
the Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company 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. Except as specifically disclosed 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
(b) would reasonably be expected to have a Material Adverse
Effect.
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. At the Closing Date and at the time of any Borrowing,
no Default or Event of Default exists or would result from the incurring of any
Obligations by the Company. As of the Closing Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, would
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Closing Date, create an Event of Default under
subsection 8.01(e).
5.07 ERISA Compliance. Except as specifically disclosed in Schedule
5.07:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law except where non-compliance would not reasonably be expected to
result in a Material Adverse Effect. Each Plan which is intended to
qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or, if otherwise, the failure to
apply for or receive a favorable determination letter would not
reasonably be expected to have a Material Adverse Effect. To the best
knowledge of the Company, nothing has occurred which would
cause the loss of qualification the effect of which would reasonably be
expected to result in a Material Adverse Effect. 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 when the failure to make
such contribution or when such application or extension would
reasonably be expected to result in a Material Adverse Effect.
(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
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) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Company nor any ERISA Affiliate has incurred, or
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); (iv) neither the Company nor any ERISA
Affiliate has incurred, or 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 (v)
neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA
that, in the case of any of clauses (i) through (v), would reasonably
be expected to result in a Material Adverse Effect.
5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 6.12
and Section 7.05. Neither the Company nor any Subsidiary is generally engaged in
the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
5.09 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or to their knowledge valid
leasehold interests in, all real property necessary for the ordinary conduct of
their respective businesses, except for such defects in title as would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. As of the Closing Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
5.10 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 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 or where failure to file such return or to pay any such tax
would not reasonably be expected to have a Material Adverse Effect. There is no
proposed tax assessment against the Company or any Subsidiary that would, if
made, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The audited consolidated financial statements of the
Company and its Subsidiaries dated December 31, 1996, and the unaudited
consolidated financial statements dated March 31, 1997, and the related
consolidated statements of income or operations, balance sheet and cash
flows for the fiscal year or the fiscal quarter, respectively, ended on
that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein,
subject to ordinary, good faith year end audit adjustments in
the case of such unaudited statements;
(ii) 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; and
(iii) show all material Indebtedness and other
liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations except for Indebtedness and other liabilities, the
existence of which would not have a Material Adverse Effect.
(b) Since December 31, 1996, there has been no Material
Adverse Effect.
5.12 Environmental Matters. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in Schedule 5.12, such Environmental Laws and Environmental Claims
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law, which would
reasonably be expected to have a Material Adverse Effect.
5.15 Copyrights, Patents, Trademarks and Licenses, etc. 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, contractual
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 except where the failure to own, be licensed to or otherwise
have the right to use the same would not have a Material Adverse Effect. To the
best knowledge of the Company, no material 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 Subsidiary infringes upon any
rights held by any other Person where any such infringement would reasonably be
expected to have a Material Adverse Effect. Except
as specifically disclosed in Schedule 5.05, no claim or litigation regarding any
of the foregoing is pending or to the knowledge of the Company threatened, which
would reasonably be expected to have a Material Adverse Effect.
5.16 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
5.16 hereto and has no material equity investments in any other corporation or
entity other than those specifically disclosed in part (b) of Schedule 5.16.
5.17 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance or reinsurance companies,
in such amounts, with such deductibles and covering such risks as are believed
by the Company to be adequate in the exercise of its reasonable business
judgment.
5.18 Full Disclosure. None of the representations or warranties made by
the Company in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, financial report or statements or certificate furnished by or on behalf
of the Company in connection with the Loan Documents, 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 as of
the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
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 reasonably satisfactory to the Agent, with sufficient copies for
each Bank:
(a) as soon as available, but not later than the date which is
the earlier of (x) 120 days after the end of each fiscal year or (y)
five (5) Business Days after the delivery of the following financial
statements to the SEC, a copy of the audited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at the end of such
year and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
and accompanied by the opinion of Deloitte & Touche or another
nationally-recognized independent public accounting firm ("Independent
Auditor") which report
shall state that such consolidated financial statements present fairly,
in all material respects, the financial position for the periods
indicated in conformity with GAAP. Such opinion shall not be qualified
or limited because of a restricted or limited examination by the
Independent Auditor 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 of the first three fiscal quarters of each fiscal year, a
copy of the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for the period
commencing on the first day and ending on the last day of such quarter,
and certified on behalf of the Company by a Responsible Officer as
fairly presenting, in all material respects and in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the
financial position and the results of operations of the Company and its
consolidated Subsidiaries.
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
referred to in subsections 6.01(a) and (b), a
Compliance Certificate executed by a Responsible Officer on behalf of
the Company which certifies that no Default or Event of Default has
occurred and is continuing (except as described therein);
(b) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms
10K, 10Q and 8K) that the Company or any Subsidiary may make to, or
file with, the SEC; and
(c) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Agent, at the request of any Bank, may from time to
time reasonably request and which relates to the ability of the Company
to perform under this Agreement.
6.03 Notices. Upon obtaining knowledge of any event described below,
the Company shall promptly notify the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of any of the following matters of which a Responsible
Officer obtains knowledge that would result in a
Material Adverse Effect: (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development
in, any litigation or proceeding affecting the Company or any
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any of the following events affecting
the Company or any ERISA Affiliate which would reasonably be expected
to result in a Material Adverse Effect (but in no event more than 10
days after a Responsible Officer obtains knowledge of such event), 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:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by the Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability ;
(d) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated
Subsidiaries which would reasonably be expected to materially affect
the Company's consolidated financial reports;
(e) of any change in the Company's senior unsecured long-term
debt ratings as publicly announced by either S&P or ▇▇▇▇▇'▇, provided
that any failure by the Company to give notice of such change shall not
affect the Company's payment obligations hereunder and such failure
shall not constitute an Event of Default.
Each notice under this Section shall be accompanied by a written statement by a
Responsible Officer setting forth details of the occurrence referred to therein,
and stating what action the Company or any affected Subsidiary proposes to take
with respect thereto
and at what time. Each notice under subsection 6.03(a) shall describe with
particularity any and all provisions of this Agreement or other Loan Document
(if any) that have been breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Material Subsidiary to:
(a) 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) to the extent practicable, using reasonable efforts,
preserve and maintain in full force and effect all governmental rights,
privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business except (x) when the
non-preservation and non-maintenance of such rights, privileges,
qualifications, permits, licenses or franchises would reasonably be
expected not to have a Material Adverse Effect or (y) in connection
with transactions permitted by Section 7.03 and sales of assets
permitted by Section 7.02;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill except
when in the reasonable judgment of the Company it is
not economical to do so or where the failure to do so would
not reasonably be expected to have a Material Adverse Effect;
and
(d) to the extent practicable, using reasonable efforts,
preserve or renew all of its registered patents, trademarks, trade
names and service marks, except when non-preservation or non-renewal of
such patents, trademarks, trade names or service marks would reasonably
be expected not to have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall
cause each Subsidiary 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 and casualty loss excepted and make all necessary repairs thereto and
renewals and replacements thereof except when in the reasonable judgment of the
Company it is not economical to do so or where the failure to do so would not
reasonably be expected to have a Material Adverse Effect. The Company and each
Subsidiary shall use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.06 Insurance. The Company shall maintain, and shall cause each
Material Subsidiary to maintain, with financially sound and reputable insurers
or independent reinsurers, insurance with
respect to its properties and business against loss or damage of the kinds and
in the amounts determined by the Company to be necessary or desirable in the
exercise of its reasonable business judgment.
6.07 Payment of Obligations. The Company shall, and shall cause each
Subsidiary 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 or unless the failure to pay or discharge would not
have a Material Adverse Effect;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property except when the failure to pay or discharge
would not have a Material Adverse Effect; and
(c) all Indebtedness, as and when due and payable (except for
such Indebtedness which is contested by the Company or any Subsidiary
in good faith or where the failure to pay or discharge would not
reasonably be expected to result
in a Material Adverse Effect), but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.08 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over 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 or where
the failure to comply would not have a Material Adverse Effect.
6.09 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law except where non-compliance would not reasonably be expected to result
in a Material Adverse Effect; and (b) make all required contributions to any
Plan subject to Section 412 of the Code except where failure to make any
contribution would not reasonably be expected to result in a Material Adverse
Effect.
6.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Material Subsidiary 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 Subsidiary. Subject to reasonable safeguards to
protect confidential information, the Company shall permit, and shall cause each
Material Subsidiary to permit, representatives and independent contractors of
the Agent 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 with respect to the Company but not its
Subsidiaries to discuss their respective affairs, finances and accounts with the
Company's directors, senior officers, and independent public accountants, all 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 an Event of Default exists the Agent or any Bank may do any of the
foregoing at the expense of the Company at any time during normal business hours
and without advance notice. The Agent shall promptly advise the Banks of its
findings after any such visit, inspection, examination or discussion.
6.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws except where the failure to comply would
not have a Material Adverse Effect.
6.12 Use of Proceeds. The Company shall use the proceeds of the Loans
for general corporate purposes including Acquisitions not in contravention of
any Requirement of Law or of this Agreement.
ARTICLE VII
NEGATIVE COVENANTS
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 Subsidiary 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 existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 7.01 or shown
as a liability on the Company's consolidated financial statements as of
December 31, 1996 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges 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;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens consisting of pledges or deposits required in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens on the property of the Company or any of its
Subsidiaries securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like nature; in each
case, incurred in the ordinary
course of business, provided all such Liens in the aggregate
would not (even if enforced) cause a Material Adverse Effect;
(g) 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;
(h) Liens on assets of corporations which become Subsidiaries
after the date of this Agreement, provided, however, that such Liens
existed at the time the respective corporations became Subsidiaries;
(i) 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;
provided 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, (iii)
the principal amount of the Indebtedness secured thereby does not
exceed 100% of the cost of such property, and (iv) the
principal amount of the Indebtedness secured by any and all such
purchase money security interests shall not at any time exceed
$30,000,000;
(j) Liens securing obligations in respect of capital leases on
assets subject to such leases;
(k) 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 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 FRB, and (ii) such deposit
account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution except in either case when
such deposit accounts are established or required in the ordinary
course of business and would not have a Material Adverse Effect; and
(l) Notwithstanding the provisions of subsections 7.01(a)
through (k), there shall be permitted Liens on property (including
Liens which would otherwise be in violation of such subsections),
provided that the sum of the aggregate Indebtedness of the Company and
its Subsidiaries
secured by all Liens permitted under this subsection (l), excluding the
Liens permitted under subsections (a) through (k), shall not exceed an
amount equal to 15% of the Company's total consolidated assets as shown
on its consolidated balance sheet for its most recent prior fiscal
quarter.
7.02 Disposition of Assets. Except as otherwise permitted by any other
provision of this Agreement, the Company shall not, and shall not suffer or
permit any Material Subsidiary to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of the foregoing,
except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) dispositions on reasonable commercial terms and for fair
value or which would not have a Material Adverse Effect, provided that
dispositions of the stock of any Material Subsidiary shall not be
permitted under this subsection(b);
(c) dispositions of property between the Company and any
consolidated Subsidiary or among consolidated Subsidiaries; and
(d) other dispositions of property during the term of this
Agreement (excluding dispositions permitted under subsections 7.02(a)
through (c)) whose net book value in the aggregate shall not exceed 25%
of the Company's total consolidated assets as shown on its consolidated
balance sheet for its most recent prior fiscal quarter.
7.03 Consolidations and Mergers. The Company shall not, and shall not
suffer or permit any Material Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Person may merge with the Company, provided that the
Company shall be the continuing or surviving corporation;
(b) any Subsidiary may merge with the Company, provided that
the Company shall be the continuing or surviving corporation, or with
any one or more Subsidiaries, provided that if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; and
(c) the Company or any Subsidiary may convey, transfer, lease
or otherwise dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise), to the
Company or another Wholly-Owned Subsidiary, as the case may be.
7.04 Transactions with Affiliates. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate (other than a Wholly-Owned Subsidiary) of the Company, except
transactions (a) entered into in good faith and (b) upon commercially reasonable
terms and taking into consideration the totality of circumstances pertaining to
such transaction as determined by the Company.
7.05 Use of Proceeds. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, in a manner which violates any applicable Requirement of Law and
which would have a Material Adverse Effect (provided that this Section 7.05
shall not be deemed to permit the use of Loan proceeds in violation of any
Requirement of Law applicable to any Bank). Notwithstanding the foregoing, at no
time shall more than 25% of the value (as determined by any reasonable method)
of the Company's assets consist of Margin Stock.
7.06 Restricted Payments. The Company shall not, and shall not suffer
or permit any Subsidiary (other than a Wholly-Owned Subsidiary) to, declare or
make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class of its
capital
stock, or purchase, redeem or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding; except that the Company or any non-Wholly-Owned
Subsidiary may:
(a) declare and make dividend payments or other distributions
payable solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its common
stock or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares
of its common stock; and
(c) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash
provided, that, before and immediately after giving effect to such
proposed action, no Default or Event of Default exists or would exist.
7.07 ERISA. The Company shall not, and shall not suffer or permit any
of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or would reasonably expected to result in a Material Adverse Effect; or
(b) engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA and which would reasonably be expected to result in a Material Adverse
Effect.
7.08 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any business that would substantially change
the general nature of the business conducted by the Company and its consolidated
Subsidiaries on the Closing Date.
7.09 Accounting Changes. The Company shall not, and shall not suffer or
permit any Material Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any such Subsidiary, if such change would
reasonably be expected to result in a Material Adverse Effect.
7.10 Interest Coverage. The Company shall not permit as of the last day
of any fiscal quarter (commencing with the period ending March 31, 1997), on a
consolidated basis, the ratio of (i) Earnings Before Interest and Taxes to (ii)
Interest Expense, to be less than 2.5 to 1.0. For purposes of this section,
"Earnings Before Interest and Taxes" means as at the end of any fiscal quarter
of the Company for the period of four consecutive fiscal quarters ended as at
such date, the sum of (a) the consolidated net income (or net loss) of the
Company and its Subsidiaries for such period as determined in accordance with
GAAP, plus (b) all amounts
treated as interest expense for such period to the extent included in the
determination of such consolidated net income (or loss); plus (c) all taxes
accrued for such period on or measured by income to the extent included in the
determination of such consolidated net income (or loss); provided, however, that
consolidated net income (or loss) shall be computed for the purposes of this
definition without giving effect to extraordinary losses or extraordinary gains
for such period; and "Interest Expense" means as at the end of any fiscal
quarter of the Company for the period of four consecutive fiscal quarters ended
as at such date, all amounts treated as interest expense for such period to the
extent included in the determination of the Company's consolidated net income
(or net loss) for such period as determined in accordance with GAAP.
7.11 Leverage. The Company shall not permit as of the last day of any
fiscal quarter (commencing with the period ending March 31, 1997), on a
consolidated basis, the ratio of (i) Funded Debt to (ii) Total Capitalization,
to be greater than 0.60 to 1.0.
7.12 Subsidiary Indebtedness. The Company shall not permit as of the
last day of any fiscal quarter (commencing with the period ending March 31,
1997), the aggregate Indebtedness of its consolidated Subsidiaries to exceed 25%
of shareholders' equity as set forth on the consolidated balance sheet of the
Company and its consolidated Subsidiaries as determined in accordance with GAAP
and
as reflected in its most recent annual or quarterly financial statements
delivered to the Agent under Section 6.01. For purposes of this Section 7.12,
the term "Indebtedness" shall be deemed to exclude Indebtedness of a Person
which becomes a Subsidiary after the date hereof, provided that such excluded
Indebtedness existed at the time such Person became a Subsidiary and was not
created in anticipation thereof.
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
(ii) within two (2) Business Days following written notice to the
Company given by the Agent or any Bank after the same becomes due, any
interest, fee or any other amount payable hereunder or under any other
Loan Document; or
(b) Representation or Warranty. Any representation or warranty
by the Company or any Subsidiary made or deemed made herein, in any
other Loan Document, or which is contained in any certificate, document
or financial or other statement by the Company, any Subsidiary, or any
Responsible Officer,
furnished at any time under this Agreement, or in or under any other
Loan Document, is 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 any of Section 6.03(a),
6.12, 7.02, 7.04, 7.05, 7.06, 7.10, 7.11 or 7.12; or
(d) Other Defaults. The Company fails to perform or observe
any other term or covenant contained in this Agreement or any other
Loan Document, and such default shall continue unremedied for a period
of 30 days after the earlier of (i) the date upon which a Responsible
Officer knew of such failure or (ii) the date upon which written notice
thereof is given to the Company by the Agent or any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary (i) fails
to perform or observe any condition or covenant, or any other event
shall occur or condition shall exist, under any agreement or instrument
relating to any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than $50,000,000, and such failure continues after
the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause such
Indebtedness to be declared to be due and payable prior to its stated
maturity; or (ii) if there shall occur any default or event of default,
however denominated, under any cross default provision under any
agreement or instrument relating to any such Indebtedness of more than
$50,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Material Subsidiary (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; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material
Subsidiary, 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 such Subsidiary's 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, stayed, vacated or fully bonded within 60 days after
commencement, filing, issuance or levy; (ii) the Company or any
Material Subsidiary 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 involving a material portion of the
Company's or such Subsidiary's total assets) is ordered in any
Insolvency Proceeding involving the Company or any such Subsidiary; or
(iii) the Company or any Material Subsidiary 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; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
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 in excess of $50,000,000; (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $50,000,000; or (iii) 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 in excess of
$50,000,000 and, in the case of any of clauses (i) through (iii), such
liability or failure to pay shall not have been vacated, discharged,
stayed, appealed or paid within ten (10) Business Days after such
liability or payment obligation arises; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, non-interlocutory decrees or
arbitration awards is entered against the Company or any Material
Subsidiary involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which the insurer
does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $50,000,000 or more, and the
same shall not have been vacated, discharged, stayed or appealed within
the applicable period for appeal from the date of entry thereof or paid
within ten (10) Business Days after the same becomes non-appealable; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order
or decree is entered against the Company or any Subsidiary which does
or would reasonably be expected to have a Material Adverse Effect; or
(k) Change of Control. There occurs any Change of Control. For
purposes of this Section 8.01(k), (i) a "Change
of Control" shall occur if any person or group of persons becomes the
beneficial owner of 51% or more of the voting power of the Company for
a period of 30 days or more; and (ii) the term "person" shall have the
meaning set forth in Section 13(d) of the Exchange Act and the term
"beneficial owner" shall have the meaning set forth in Rule 13d-3
promulgated under the Exchange Act.
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 Committed
Loans to be terminated, whereupon such commitments shall 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 subsection
(f) or (g) of Section 8.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans shall automatically terminate 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 without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents (whether now existing or hereafter arising) are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby irrevocably
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.
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 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 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 (or all
the Banks if specifically required hereunder) 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 (or all the Banks if specifically required hereunder) 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 Section 4.01, 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 on or prior
to the Closing Date 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.
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". The Agent will notify the
Banks of its receipt of any such notice. The Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Majority
Banks in accordance with Article VIII; provided, however, that unless and until
the Agent has 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 acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereafter 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 hereby, and made its own decision to enter into this Agreement and
to extend credit to the Company hereunder. Each Bank also represents that it
will, independently and without reliance upon any Agent-Related Person 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 are 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), pro rata, from and against any
and all Indemnified Liabilities; provided, however, that no Bank shall be
liable for the payment to the Agent-Related Persons of any portion of such
Indemnified Liabilities 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. The undertaking 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 Subsidiary) 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" include BofA in
its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the Company
(so long as no Default or Event of Default exists at the time of such request)
or the Majority Banks shall, resign as Agent upon 30 days' notice to the Banks.
If the Agent resigns under this Agreement, the Company shall appoint from among
the Banks a successor agent for the Banks (unless an Event of Default then
exists in which case the Majority Banks shall appoint the successor agent). 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 Company or the
Majority Banks appoint a successor agent as provided for above.
9.10 Withholding Tax.
(a) If any Bank claims exemption from withholding tax under a
United States tax treaty by providing IRS Form 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank
agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Bank.
To the extent of such percentage amount, the Agent will treat such
Bank's IRS Form 1001 as no longer valid.
(b) Subject to the requirements of this Agreement, if any Bank
claiming exemption from United States withholding tax by filing IRS
Form 4224 with the Agent sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of the Company to
such Bank, such Bank agrees to undertake sole responsibility for
complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(c) If the IRS or any other Governmental Authority of the
United States or any 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 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 payable to the
Agent under this subsection, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the
resignation or replacement of the Agent.
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 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)
and the Company and acknowledged by the Agent, and then any such waiver and
consent 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 and the Company and
acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to subsection 8.02(a)),
unless such Bank has consented thereto in writing pursuant to Section
2.09 or otherwise;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, facility
fees or other material amounts due to the Banks (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any facility fees
or other material amounts payable hereunder or under any other Loan
Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Banks or any of them to take any action hereunder; or
(e) amend this Section, or Section 2.14, or any provision
herein providing for consent or other action by all Banks;
and, provided further, that (i) 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, and (ii) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed by the parties
thereto.
10.02 Notices.
(a) All notices, requests and other communications shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 10.02, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number
specified for notices on Schedule 10.02; 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 any
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 in legible
form by facsimile machine, respectively, or if mailed, upon the fifth
Business Day after the date deposited into the U.S. mail, 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) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or 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, absent gross
negligence or willful misconduct, 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 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:
(a) following the Closing Date pay or reimburse the Agent
within five Business Days after demand for all reasonable costs and
expenses incurred by the Agent in connection with the administration
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,
including reasonable Attorney Costs incurred by the Agent with respect
thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank
within five Business Days after demand for all reasonable costs and
expenses (including Attorney Costs) incurred by them in connection with
the enforcement, attempted enforcement, or preservation of any rights
or remedies under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate
proceeding).
10.05 Indemnity. Whether or not the transactions contemplated hereby
are consummated, the Company shall indemnify and hold the Agent-Related Persons,
and each Bank and each of its 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 and disbursements
(including reasonable Attorney Costs) of any kind or nature whatsoever which may
at any time (including at any time following repayment of the Loans and the
termination, resignation or replacement of the Agent or replacement of any Bank)
result from an action, suit, proceeding or claim asserted against any such
Indemnified Person by any Person not entitled to indemnification under this
section in any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of 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 not be liable to any Indemnified Person for any portion of
such Indemnified Liabilities resulting from such Indemnified Person's gross
negligence or willful misconduct. In the event this indemnity is unenforceable
as a matter of law as to a particular matter or consequence referred to herein,
it shall be enforceable to the full extent permitted by law. Promptly upon
receipt of notice of the making of any claim or the initiation of any action,
suit, or proceeding, the Indemnified Person shall, if a claim in respect thereof
is to be made against the Company hereunder, notify the Company in writing of
the commencement thereof. The Company shall have the right at its expense, to
provide and to control the defense of any such claim, action, suit, or
proceeding, provided that the Company must keep such Indemnified Person apprised
of the progress of any such claim, action, suit or proceeding, and provided
further that if such Indemnified Person
reasonably believes that its failure to participate will materially adversely
affect its interests or when the Indemnified Person has received an opinion of
nationally recognized counsel (which opinion shall be at the Company's expense)
that there is a conflict of interest which makes it inadvisable for the
Company's attorney to represent such Person, it shall notify the Company of such
conclusion in writing and may, at its election, participate in such claim,
action, suit or proceeding (the legal fees incurred by such Indemnified Person
as a result of such participation to be reimbursed by the Company to such
Person). Any such claim, action, suit or proceeding shall not be settled, if any
indemnification is claimed hereunder with respect thereto, without the prior
written approval of the Company and such Indemnified Person which shall not be
unreasonably withheld or delayed in either case. The agreements in this Section
shall survive payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment 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 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 set-off had not occurred, and (b) each Bank
severally agrees to pay to the Agent upon demand its pro rata share or other
applicable 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 and no Bank shall assign any of its rights or
obligations hereunder except in accordance with Section 10.08.
10.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company at
all times other than during the existence of an Event of Default and
the Agent, which consents shall not be unreasonably withheld, at any
time assign and delegate to one or more Eligible Assignees (provided
that no written consent of the Company or the Agent shall be required
in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank) (each an
"Assignee") all, or any ratable part of all, of the Loans, the
Commitment and the other rights and obligations of such Bank hereunder,
in a minimum amount of $20,000,000; provided, however, that the Company
and the Agent may continue to deal solely and directly with such Bank
in connection with the interest so assigned to an Assignee until (i)
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; (ii) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance in the form of
Exhibit L ("Assignment and Acceptance") and (iii) the assignor Bank or
Assignee has paid to the Agent a processing fee in the amount of
$2,500, provided that in the case of a transfer under Section 3.08, the
assignor Bank shall not be obligated to pay such processing fee.
(b) From and after the date that the Agent notifies the
Company and the assignor Bank that it has received an executed
Assignment and Acceptance which has been consented to by the Agent and
by the Company (if required), 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, 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, relinquish its rights and
be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee, (and provided that the Agent and the
Company consents to such assignment in accordance with subsection
10.08(a)), the Company shall execute and deliver to the Agent a Bid
Loan Note for the Assignee (if the Assignee was not previously a Bank
under this Agreement) and, if the assignor Bank is not retaining any
interest in this Agreement such assignor Bank shall promptly cancel and
return its Bid Loan Note to the Agent for return to the Company.
Immediately upon each Assignee's making its processing fee payment
under the Assignment and Acceptance, 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, with the written consent of the Company at
all times other than during the existence of an Event of Default, which
consent shall not be unreasonably withheld, at any time sell to one or
more Eligible Assignees (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, (iv) no Bank shall transfer or grant any
participating interest under which the Participant has 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 the first proviso to Section 10.01 and (v) with
respect to the sale of participating interests in any Bid Loan to any
Participant, (x) the Company's consent shall not be required and (y)
the term "Eligible Assignee" shall be deemed to include any financial
institution organized under the laws of the United States having a
combined capital and surplus of at least
$250,000,000. In the case of any such participation, the Participant
shall not have any rights under this Agreement, or any of the other
Loan Documents, and all amounts payable by the Company hereunder shall
be determined as if such Bank had not sold such participation.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Company and
provided to it by the Company or any Subsidiary, or by the Agent on
such Company's or Subsidiary's behalf, under this Agreement or any
other Loan Document, and neither it nor any of its Affiliates shall
disseminate such information except on a "need to know" basis to
employees of such Bank or Affiliate, as the case may be, and their
respective representatives or use any such information other than in
connection with or in enforcement of this Agreement and the other Loan
Documents; except to the extent such information (i) was or becomes
generally available to the public other than as a result of 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, 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
(provided that such Bank shall promptly notify the Company of any such
subpoena or process, unless it is legally prohibited from doing so, and
cooperate with the Company at the Company's expense in obtaining a
suitable order protecting the confidentiality of such information); (C)
when required to do so in accordance with the provisions of any
applicable Requirement of Law; (D) to the extent reasonably required in
connection with any litigation or proceeding to which the Agent, any
Bank or their respective Affiliates may be party provided that such
Bank will promptly notify the Company of any such disclosure and use
reasonable efforts at the Company's expense to obtain a suitable order
protecting the confidentiality of such information; (E) to the extent
reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Bank's
independent auditors and other professional advisors; and (G) to any
Affiliate of such Bank, or to any Participant or Assignee, actual or
(with the written consent of the Company) potential, provided that such
Affiliate, Participant or Assignee agrees in writing to keep such
information confidential to the same extent required of the Banks
hereunder.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement and any
Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14,
and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law. If requested by
any such Bank for purposes of this subsection 10.08(f), the Company
shall execute and deliver to such Bank a promissory note evidencing
such Bank's Committed Loans, which promissory note shall be in a form
reasonably satisfactory to the Agent and the Company.
10.09 Set-off. In addition to any rights and remedies of the Banks
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 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. In the event of any inconsistency between this section and any
agreement governing deposits maintained by the Company with any Bank, this
Section shall control with respect to set-offs affecting this Agreement. 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.
10.10 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 any 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.
10.11 Counterparts. This Agreement may be executed 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.
10.12 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.
10.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, 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.
10.14 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 NEW YORK;
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 OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK 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.
10.15 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 ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, 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.
10.16 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 written, relating to the subject
matter hereof and thereof.
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.
DELUXE CORPORATION
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Title Senior Vice President
---------------------------
and Chief Financial Officer
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title Assistant Vice President
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title Assistant Vice President
---------------------------
FIRST BANK NATIONAL ASSOCIATION
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title Vice President
---------------------------
THE BANK OF NEW YORK
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title Vice President
---------------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Title Assistant Vice President
---------------------------
WACHOVIA BANK, N.A.
By ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title Vice President
---------------------------
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ---------- -----
Bank of America National
Trust and Savings
Association $50,000,000 33.▇▇▇▇▇▇▇▇%
First Bank National Association $25,000,000 16.▇▇▇▇▇▇▇▇%
The Bank of New York $25,000,000 16.▇▇▇▇▇▇▇▇%
Norwest Bank Minnesota, $25,000,000 16.66666667%
National Association
Wachovia Bank, N.A. $25,000,000 16.66666667%
TOTAL $150,000,000 100.00000000%
SCHEDULE 5.12
ENVIRONMENTAL MATTERS
None
SCHEDULE 5.16
LIST OF SUBSIDIARIES AND MATERIAL EQUITY INVESTMENTS
Part (a) -- Subsidiaries:
Chex Systems, Inc. (DE - 100%)
Current, Inc. (DE - 100%)
Deluxe Business Forms and Supplies, Inc. (MN - 100%)
Deluxe Canada, Inc. (Canada - 100%)
Deluxe Check Printers, Inc. (MN - 100%)
Deluxe Check Texas, Inc. (MN - 100%)
Deluxe Check Printers Texas, L.P.
Deluxe Direct, Inc. (CO - 100%)
Deluxe Electronic Payment Systems, Inc. (DE - 100%)
Deluxe Financial Services, Inc. (MN - 100%)
Deluxe Holdings (Netherlands) B.V. (To be formed)
Deluxe Payment Protection Systems, Inc. (DE - 100%)
Deluxe (UK) Limited (United Kingdom - 100%)
United Creditors' Alliance International Limited (United
Kingdom - 100%)
Deluxe Data International Limited (United Kingdom - 100%)
Connex Europe s.r.l. (Italy - 100%)
ESP Employment Screening Partners, Inc. (MN - 100%)
Nelco, Inc. (WI - 100%)
NRC Holding Corporation (DE - 100%)
National Revenue Corporation (OH - 100%) United Creditors' Alliance
Corporation (OH - 100%) National Credit Services Corporation (MO - 100%)
National Receivables Corporation (OH- 100%)
PaperDirect, Inc. (NJ - 100%)
PaperDirect Pacific Holdings, Ltd. (MN - 100%)
PaperDirect Pacific Pty. Limited (Australia - 100%)
PaperDirect Pacific Exports Pty. Limited (Australia
- 100%)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ Inc. (MN - 100%)
PART (b) MATERIAL EQUITY INVESTMENTS:
NONE
SCHEDULE 7.01
EXISTING LIENS
None
SCHEDULE 10.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
DELUXE CORPORATION
All notices:
Deluxe Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Deluxe Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Address for Credit/Documentation Issues:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices/Operational Purposes:
Bank of America National Trust
and Savings Association
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
DOMESTIC AND OFFSHORE LENDING OFFICE:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bank of America NT&SA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST BANK NATIONAL ASSOCIATION
DOMESTIC AND OFFSHORE LENDING OFFICE:
First Bank Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Notices (other than Borrowing notices and Notices of Conversion/Continuation):
Address: First Bank Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
DOMESTIC AND OFFSHORE LENDING OFFICE:
One Wall Street Central Division, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Address: One Wall Street Division, 19th Floor
New York, New York 10286
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
DOMESTIC AND OFFSHORE LENDING OFFICE:
Sixth & Marquette
Minneapolis, Minnesota 55479-0085
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Address: ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, N.A.
DOMESTIC AND OFFSHORE LENDING OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
sdxFacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
To Bank of America National Trust and
Savings Association (individually and as
Agent) and the other Banks parties to the
Amended and Restated Credit Agreement dated
as of July 8, 1997 (as amended or otherwise
modified, the "Agreement") with Deluxe
Corporation
This certificate is furnished to you pursuant to Section 6.02(a) of the
Agreement concurrently with the delivery of the financial statements required
pursuant to Section 6.01 (a) and (b) of the Agreement. Terms not otherwise
defined herein are used herein as defined in the Agreement.
The Company hereby certifies to you that:
(A) no Default or Event of Default has occurred and is continuing,
except as described in Attachment 1 hereto;
(B) the computations set forth below are true and correct as of
________________, 19__(1) (the "Computation Date");
(C) if the financial statements of the Company being concurrently
delivered were not prepared in accordance with GAAP, Attachment 2 hereto sets
forth any derivations required to conform the relevant data in such financial
statements to the computations set forth below; and
(D) there have been no changes in accounting policies or financial
reporting practices of the Company or any of its Subsidiaries since the date of
the last compliance certificate delivered to you.
(1) Section 7.10 Interest Coverage
(a) Ratio of Earnings Before Interest
and Taxes to Interest Expense
under Section 7.10 ___ to 1.0
--------
(1) The last day of the accounting period for which financial statements
are being concurrently delivered.
(b) Maximum ratio of Earnings
Before Interest and Taxes to
Interest Expense permitted
under Section 7.10 2.5 to 1.0
(2) Section 7.11 Leverage
(a) Ratio of Funded Debt to
Total Capitalization under
Section 7.11 ___ to 1.0
(b) Maximum ratio of Funded Debt
to Total Capitalization permitted
under Section 7.11 0.60 to 1.0
Dated this ________ day of ______________, 19__.
DELUXE CORPORATION
By:____________________________
Its:___________________________
Schedule A
List of Lenders
Bank of America National Trust
and Savings Association, as a Lender
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[LENDER]
Facsimile: (___) ___-____
[LENDER]
Facsimile: (___) ___-____
[LENDER]
Facsimile: (___) ___-____
[LENDER]
Facsimile: (___) ___-____
EXHIBIT B
FORM OF NOTICE OF BORROWING
Date: ______________, 199_
To: Bank of American National Trust and Savings Association as Agent for the
Banks parties to the Amended and Restated Credit Agreement dated as of
July 8, 1997 (as extended, renewed, amended or restated from time to time,
the "Credit Agreement") among Deluxe Corporation, certain Banks which are
signatories thereto and Bank of America National Trust and Savings
Association, as Agent.
Ladies and Gentlemen:
The undersigned, Deluxe Corporation, (the "Company"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.03 of
the Credit Agreement, of the Committed Borrowing specified herein:
1. The Borrowing Date of the proposed Borrowing is ___________, 19___.
2. The aggregate amount of the proposed Borrowing is $_________________.
3. The Borrowing is to be comprised of $______________ of [Offshore Rate] [Base
Rate] Committed Loans.
4. [If applicable:] The duration of the Interest Period for the Offshore Rate
Committed Loans included in the Borrowing shall be ____ months.
The undersigned hereby certifies that the following statements are true
as of the date of the proposed Borrowing, before and after giving effect thereto
and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company contained in
Article V of the Credit Agreement are true and correct as though 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 are true and correct as of such
earlier date);
(b) no Default or Event of Default shall exist or shall result from
such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate principal
amount of all outstanding Committed Loans together with the aggregate principal
amount of all outstanding Bid Loans, to exceed the combined Commitments.
DELUXE CORPORATION
By: _________________________
Title: ________________________
EXHIBIT C
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _________________, 199__
To: To: Bank of American National Trust and Savings Association as Agent
for the Banks parties to the Amended and Restated Credit Agreement
dated as of July 8, 1997 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement") among Deluxe Corporation,
certain Banks which are signatories thereto and Bank of America
National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned, Deluxe Corporation (the "Company"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.04 of
the Credit Agreement, of the [conversion] [continuation] of the Committed Loans
specified herein, that:
1. The Conversion/Continuation Date is ______________, 19___.
2. The aggregate amount of the Loans to be [converted] [continued] is
$______________.
3. The Loans are to be [converted into] [continued as] [Offshore Rate] [Base
Rate] Committed Loans.
4. [If applicable:] The duration of the Interest Period for the Loans included
in the [conversion] [continuation] shall be _____ months.
The undersigned hereby certifies that the following statements are true
as of the proposed Conversion/Continuation Date, before and after giving effect
thereto and to the application of the proceeds therefrom;
(a) the representations and warranties of the Company
contained Article V of the Credit Agreement are true and correct as
though 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 are true and correct as of such earlier date);
(b) no Default or Event of Default shall exist or shall result
from such proposed [conversion] [continuation]; and
(c) the proposed [conversion] [continuation] will not cause
the aggregate principal amount of all outstanding Committed Loans
together with the aggregate principal amount of all outstanding Bid
Loans, to exceed the combined Commitments.
DELUXE CORPORATION
By: ____________________________
Title: _________________________
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BIDS
Via Facsimile
To the Banks Listed on Schedule A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of July 8, 1997 (as amended from time to time, the "Credit Agreement"),
among Deluxe Corporation (the "Company"), the Banks party thereto, and Bank of
America National Trust and Savings Association, as Agent for the Banks (the
"Agent"). Capitalized terms used herein have the meanings specified in the
Credit Agreement.
Pursuant to subsection 2.06(b) of the Credit Agreement, you are hereby
invited to submit offers to make Bid Loans to the Company based on the following
specifications:
1. Borrowing date: ______________, 199__;
2. Aggregate amount requested by the Company; $ ________________.
3. [LIBOR Bid Loans] [Absolute Rate Bid Loans]; and
4. Interest Period[s]: _________________, [___________] and [_______________]
All Competitive Bids must be in the form of Exhibit F to the Credit
Agreement. Please respond to this invitation by no later than 6:30 a.m. (unless
the invitation is from the Agent on behalf of the Company, in which case for
BofA only, 6:15 a.m.) (San Francisco time) on _________, 19__.(1) [This
invitation is from the Agent on behalf of the Company and your response should
be submitted to the agent.](2) [This invitation is from the Company and your
response should be submitted directly to the Company.](3)
--------------
(1) Insert a date which is three Business Days prior to the date of Borrowing,
in the case of a LIBOR Auction, or on the date of Borrowing, in the case of an
Absolute Rate Auction.
(2) To be included if the invitation is made by the Company through the Agent.
(3) To be included if the invitation is made by the Company directly to the
Banks.
Schedule A
List of Banks
Bank of America National Trust
and Savings Association, as a Bank
[Bank]
Facsimile: (___) ___- _____
[Bank]
Facsimile: (___) ___- _____
[Bank]
Facsimile: (___) ___- _____
[Bank]
Facsimile: (___) ___- _____
EXHIBIT E
FORM OF COMPETITIVE BID REQUEST
_______________, 199_
Bank of America National Trust
and Savings Association,
as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Management Service #5596
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement dated as
of July 8, 1997 (as amended from time to time to time, the "Credit Agreement"),
by and among Deluxe Corporation (the "Company"), the Banks party thereto, and
Bank of America National Trust and Savings Association, as Agent for the Banks
(the "Agent"). Capitalized terms used herein have the meanings specified in the
Credit Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section
2.06(a) of the Credit Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is __________,
199__.
(ii) The aggregate amount of the proposed Bid Borrowing is
$_______________.
(iii) The proposed Bid Borrowing to be made pursuant to Section 2.06
shall be comprised of [LIBOR] [Absolute Rate] Bid Loans.
(iv) The Interest Period[s[ for the Bid Loans comprised in the
Borrowing shall be _____________, [__________] and [______________].
DELUXE CORPORATION
By: _________________________
Title: _______________________
EXHIBIT F
FORM OF COMPETITIVE BID
__________________, 199___
[Bank of American National Trust
and Savings Association,
as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Agency Management Services #5596](1)
]Deluxe Corporation
_____________________
_____________________
Attention: _______________________](2)
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement dated as
of July 8, 1997 (as amended from time to time, the "Credit Agreement"), by and
among Deluxe Corporation (the "Company"), the Banks party thereto, and Bank of
America National Trust and Savings Association, as Agent for the Banks (the
"Agent"). Capitalized terms used herein have the meanings specified in the
Credit Agreement.
In response to the Invitation for Competitive Bids dated ________,
199___ and in accordance with subsection 2.06(c)(ii) of the Credit Agreement,
the undersigned Bank offers to make [a] Bid Loan[s] thereunder in the following
principal amount[s] at the following interest rates for the following Interest
Period[s]:
Date of Borrowing: ________________, 199___
Aggregate Maximum Bid Amount: $_________________________
(1) To be addressed to the Agent if the Agent sent the Invitation for
Competitive Bids.
(2) To be addressed directly to the Company if the Company sent the Invitation
for Competitive Bids.
------------------------------------ ----------------------------------- -----------------------------------
Principal Principal Principal
Amount $______________ Amount $ ______________ Amount $ ______________
------------------------------------ ----------------------------------- -----------------------------------
------------------------------------ ----------------------------------- -----------------------------------
Interest: Interest: Interest:
[Absolute [Absolute [Absolute
Rate __%, __%, __%](3) Rate __%, __%, __%](3) Rate __%, __%, __%](3)
------------------------------------ ----------------------------------- -----------------------------------
------------------------------------ ----------------------------------- -----------------------------------
or or or
[LIBOR Bid [LIBOR Bid [LIBOR Bid
Margin +/- __%, Margin +/- __%, Margin +/- __%,
+/- __%, +/- __%](3) +/- __%, +/- __%](3) +/- __%, +/- __%](3)
------------------------------------ ----------------------------------- -----------------------------------
------------------------------------ ----------------------------------- -----------------------------------
Interest Interest Interest
Period __________ Period __________ Period __________
------------------------------------ ----------------------------------- -----------------------------------
[NAME OF BANK]
By: _______________________
Title: ______________________
(3) Interest rate may be quoted to five decimal places.
EXHIBIT G
FORM OF BID LOAN NOTE
The undersigned for value received, promises to pay to the order of
_________ (herein called the Bank), at the offices of Bank of American National
Trust and Savings Association located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein called the Agent) or at such other offices as the Agent
may specify from time to time, the principal amount of each Bid Loan made by the
Bank to the undersigned from time to time from the date hereof up to the
Revolving Termination Date pursuant to Section 2.06 of that certain Amended and
Restated Credit Agreement dated as of July 8, 1997, as amended, supplemented or
otherwise modified from time to time (herein called the Credit Agreement) by and
between the undersigned, various banks (including the Bank) and the Agent, on
the last day of the Interest Period for such Bid Loan. In any event, the
aggregate unpaid principal amount of all Bid Loans shall be due and payable on
the Revolving Termination Date.
The aggregate unpaid principal amount from time to time of Bid Loans
made by the Bank to the undersigned shall bear interest until paid at the
rate(s) per annum as agreed to by the Bak and the undersigned pursuant to the
Credit Agreement, payable at such time(s) as is therein provided.
All capitalized terms appearing herein are, unless otherwise indicated,
used with the meanings assigned to such terms in the Credit Agreement.
This promissory note is one of the Bid Loan Notes issued pursuant to
the Credit Agreement and evidences indebtedness of the undersigned incurred
under, and is subject to the terms and provisions of, the Credit Agreement (and,
if amended, all amendments thereto), to which reference is hereby made for a
statement of said terms and provisions.
The principal hereof and interest hereon are payable in lawful money of
the United States of America in immediately available funds. Prior to any
transfer of this Note to the extent allowed under the Credit Agreement, each Bid
Loan made by the Bank to the undersigned under the Credit Agreement (including
any refinancing thereof), the interest rate and Interest Period applicable
thereto and all payments of principal hereof by the undersigned to the Bank
shall be endorsed on a grid schedule or grid schedules in the form of the
schedule attached hereto and by this reference thereto made a part of this Note.
Notwithstanding the foregoing, the failure to make, or an error in making, such
endorsement shall not in any manner affect the obligation of the undersigned
hereunder.
THIS NOTE HAS BEEN MADE UNDER AND IS GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
DELUXE CORPORATION
By: __________________________
Title: _________________________
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
SCHEDULE
Amount of Interest Maturity Interest Amount of Outstanding Name of Person
Date Bid Loan Rate of Interest Paid Principal Balance Making Notation
Period Repaid
EXHIBIT H
BANK'S RESPONSE TO PRO RATA COMMITMENT INCREASE REQUEST
SUPPLEMENT, dated _________________, 19____, to the Amended and Restated Credit
Agreement, dated as of July 8, 1997 (as amended from time to time, the
"Agreement"), among DELUXE CORPORATION (the "Company"), the banks parties
thereto (individually a "Bank" and collectively the "Banks"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the
"Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.09 thereof, that the
Company may request the Banks to increase the aggregate Commitments, and each
Bank has the option, in its sole discretion, to subscribe for its proportionate
share of such requested increase, according to its then existing Pro Rata Share,
by executing and delivering to the Company and the Agent a supplement to the
Agreement in substantially the form of this Supplement; and
WHEREAS, at the Company's request the undersigned now desires to increase the
amount of its Commitments under the Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Agreement,
that on the date this Supplement is accepted by the Company and the Agent, it
shall have its Commitment to the Company increased by $_____________, thereby
making the amount of its Commitment $_____________.
2. Terms defined in the Agreement shall have their meanings defined therein when
used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed
and delivered by a duly authorized officer on the date first above written.
______________________________________
By: _________________________________
Title: _______________________________
Accepted this ____ day of ___________________, 199___.
DELUXE CORPORATION
By: ________________________________
Title: _______________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ________________________________
Title: _______________________________
EXHIBIT I
SUPPLEMENT FOR NON-PRO RATA COMMITMENT INCREASE (EXISTING BANK)
SUPPLEMENT, dated __________________, 19__, to the Amended and Restated
Credit Agreement, dated as of July 8, 1997 (as amended from time to time, the
"Agreement"), among DELUXE CORPORATION (the "Company"), the banks parties
thereto (individually a "Bank" and collectively the "Banks"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the
"Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.09 thereof, that
in the event all of the Banks do not subscribe for their proportionate share of
an increase in the aggregate Commitments requested by the Company pursuant to
such section then a Bank may subscribe for a non-proportionate increase in its
Commitment, by executing and delivering to the Company and the Agent a
supplement to the Agreement in substantially the form of this Supplement; and
WHEREAS, at the Company's request the undersigned now desires to
increase the amount of its Commitments under the Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Agreement,
that on the date this Supplement is accepted by the Company and the Agent, it
shall have its Commitment to the Company increased by $___________, thereby
making the amount of its Commitment $_____________.
2. Terms defined in the Agreement shall have their meanings defined therein when
used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
____________________________
By: _________________________
Title: ________________________
Accepted this ___ day of _______________, 199__.
DELUXE CORPORATION
By: ________________________
Title: _______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: _________________________
Title: ________________________
EXHIBIT J
SUPPLEMENT FOR COMMITMENT INCREASE (NEW BANK)
SUPPLEMENT, dated ________________, 19__, to the Amended and Restated
Credit Agreement, dated as of July 8, 1997 (as amended from time to time, the
"Agreement") among DELUXE CORPORATION (the "Company"), the banks parties thereto
(individually a "Bank" and collectively the "Banks"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, the Agreement provides, pursuant to Section 2.09 thereof, that
any bank meeting the qualifications of an Eligible Assignee, although not
originally a party thereto, may become a party to the Agreement with the consent
of the Company and the Agent by executing and delivering to the Company and the
Agent a supplement to the Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned was not an original party to the Agreement but
now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the Agreement and
agrees that, on the date of this Supplement is accepted by the Company and the
Agent, it shall become a Bank for all purposes of the Agreement to the same
extent as if originally a party thereto. The undersigned agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Agreement are required to be performed by it as a Bank, including the
requirements concerning confidentiality.
2. As of the acceptance date noted below, the amount of the Commitment of the
undersigned shall be
$________________.
3. The following administrative details apply to the undersigned:
(A) Domestic Lending Office:
Name: _____________________
Address: __________________
___________________________
___________________________
Attention: ________________
Telephone: ( ) __________
Facsimile: ( ) __________
(B) Offshore Lending Office:
Name: _____________________
Address: __________________
___________________________
___________________________
Attention: ________________
Telephone: ( ) __________
Facsimile: ( ) __________
(C) Notice Address:
Name: ______________________
Address: ___________________
____________________________
____________________________
Attention: _________________
Telephone: _________________
Facsimile: _________________
(D) Payment Instructions:
Account No.: _______________
At: ________________________
____________________________
____________________________
Reference: _________________
Attention: _________________
4. The undersigned (a) acknowledges that it has received a copy of the Agreement
and the Schedules and Exhibits thereto, together with copies of the financial
statements refered to in Section 6.01 of the Agreement, and such other documents
and information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into the Agreement; and (b) agrees that it will,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Agreement.
5. The undersigned agrees to comply with Sections 3.01 and 9.10 of the Agreement
(if applicable).
6. The undersigned represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this Supplement and any other documents
required or permitted to be executed or delivered by it in connection with this
Supplement, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Supplement; and apart from any agreements or undertaking or filings
required by the Agreement, no further action by, or notice to, or filing with,
any person is required of it for such execution, delivery or performance; (iii)
this Supplement has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the undersigned, enforceable against the
undersigned in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general equitable
principles; and (iv) it is an Eligible Assignee.
7. Terms defined in the Agreement shall have their meanings defined therein when
used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
____________________________
By: ________________________
Title: _____________________
Accepted this ____ day of ________________, 199_.
DELUXE CORPORATION
By: ________________________
Title: _____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ________________________
Title: _____________________
EXHIBIT K
Form of Opinion of Counsel to the Company
July 8, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ National Trust and
Savings Association, as Agent
Each of the Banks referred to as the
Banks in the Agreement mentioned below
c/o Bank of America National Trust and
Savings Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is furnished to you in connection with the execution and delivery
of the Amended and Restated Credit Agreement dated as of July 8, 1997 between
Deluxe Corporation, a Minnesota corporation (the "Company") and Bank of America
National Trust and Savings Association as Agent (the "Agent") for the Banks
named on the signature pages thereto (the "Banks") (the "Agreement").
The undersigned is Senior Vice President, General Counsel and Secretary of the
Company. In rendering this opinion, I have consulted with other officers of the
Company, outside counsel, and other attorneys within the Company's Law
Department, as I have deemed appropriate for purposes of this opinion.
This opinion is provided pursuant to Section 4.01(d) of the Agreement.
Capitalized terms not otherwise defined herein have the respective meanings set
forth in the Agreement.
In connection with this opinion, I, or other attorneys within the Company's Law
Department, have reviewed the Agreement, the Notes, the other Loan Documents
(collectively, the "Loan Documents"), and such other documents as I have deemed
necessary and appropriate for purposes of this opinion, including, without
limitation, the Amended Articles of Incorporation and the Amended By-laws of the
Company. In addition, I, or other attorneys within the Company's Law Department,
have investigated such questions of law (including where deemed appropriate,
consulting with outside counsel) and reviewed such certificates of government
officials and information from
officers and representatives of the Company as I have deemed necessary or
appropriate for the purposes of this opinion.
In rendering the opinions expressed below, I have assumed, with the Bank's
permission and without verification:
(a) the authenticity of all Loan Documents submitted to me as originals,
(b) the genuineness of all signatures,
(c) the legal capacity of natural persons,
(d) the conformity to originals of the Loan Documents submitted to me as
copies,
(e) the due authorization, execution and delivery of the Loan Documents by the
parties thereto other than the Company, and
(f) that the Loan Documents constitute the valid, binding and enforceable
obligations of the parties thereto other than the Company.
Based on the foregoing, and subject to the qualifications set forth below, I am
of the opinion that:
1. The Company and each of its Material Subsidiaries, is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to conduct business
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect (as defined in the Agreement). The Company has the
requisite corporate power to execute, deliver and perform its obligations under
the Loan Documents.
2. The execution, delivery and performance by the Company of the Loan Documents
to which the Company is a party have been duly authorized by all requisite
corporate action. The Loan Documents have been duly executed and delivered by
the Company and constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms.
3. The execution and delivery by the Company of the Loan Documents to which the
Company is a party, and the performance by the Company of its obligations
thereunder, do not and will not (a) violate any provision of law, statute, rule
or regulation or any order, writ, judgment, injunction, decree, determination or
award of any court, governmental agency or arbitrator presently in effect having
applicability to the Company, (b) violate any provision of the Amended Articles
of Incorporation or Amended By-laws of the Company, (c) result in breach or
constitute a default under any
indenture, loan or credit agreement or any other material agreement, lease or
instrument known to me to which the Company is a party or by which it or any of
its properties may be bound or result in the creation of a Lien thereunder.
4. No order, consent, approval, license, authorization or validation of, or
filing, recording, or registration with, or exemption by, any governmental or
public body or authority is required on the part of the Company to authorize, or
is required in connection with the execution, delivery and performance of, or
the legality, validity or binding effect or enforceability of, the Loan
Documents.
5. Except as disclosed on Schedule 5.05 of the Agreement, there are no actions,
suits or proceedings pending or, to the best of my knowledge, overtly threatened
against or affecting the Company or any of its properties before any court or
arbitrator, or any governmental department, board, agency or other
instrumentality which (i) challenge the legality, validity or enforceability of
the Loan Documents, or (ii) would reasonably be expected to have a Material
Adverse Effect.
6. The Company is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. There is no litigation pending or, to the best of my knowledge, threatened,
alleging that any slogan or other advertising device, product, process, method,
substance, part or other material now employed by the Company or any Subsidiary
infringes upon any rights of any other Person which would reasonably be expected
to have a Material Adverse Effect.
8. The making of the Loans contemplated by the Agreement, and the use of the
proceeds thereof as provided in the Agreement, does not violate Regulations G, U
or X of the FRB.
The opinions set forth above are subject to the following qualifications and
exceptions:
(a) I express no opinion as to the laws of any jurisdiction other than the
State of Minnesota and the federal laws of the United States of America. I
call to your attention the fact that the Loan Documents provided that they
are to be governed by the laws of the State of New York. For purposes of my
opinion concerning the enforceability of the Loan Documents, I have
assumed, with your permission, that the laws of the State of New York are
the same in all material respects as the laws of the State of Minnesota.
(b) My opinions are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent transfer or
other similar law of general application affecting creditors' rights
generally.
(c) My opinions are subject to the effect of general principles of equity and
concepts of materiality, reasonableness, good faith and fair dealing, and
other similar doctrines affecting the enforceability of agreements
generally (regardless of whether considered in a proceeding in equity or at
law).
(d) My opinion with respect to the enforceability of the provisions of the
Agreement is qualified to the extent that the provision that terms
contained therein may not be waived or modified except in writing may be
limited under certain circumstances.
(e) My opinion with respect to the enforceability of the provisions of the
Agreement is further qualified to the extent that the availability of
specific performance, injunctive relief and other equitable remedies is
subject to the discretion of the tribunal before which any proceeding
therefor may be brought.
(f) I express no opinion as to the enforceability of the Loan Documents to the
extent they contain:
(i) choice of law or forum selection provisions,
(ii) waivers by the Company of any statutory or constitutional rights or
remedies, or
(iii) grants to the Agent or Banks of powers of attorney.
(g) I express no opinion as to (i) the enforceability of provisions of the Loan
Documents to the extent they contain cumulative remedies which purport to
compensate, or would have the effect of compensating, the party entitled to the
benefits thereof in an amount in excess of the actual loss suffered by such
party, or (ii) the enforceability of the Company's obligation to pay any default
interest rate if the payment of such interest rate may be construed as
unreasonable in relation to actual damages or grossly disproportionate to actual
damages suffered by the Agent or the Banks as a result of such default.
(h) I express no opinion as to compliance or the effect of noncompliance by the
Agent or the Banks or any subsequent holder of the Notes with any state or
federal laws or regulations applicable to the Agent or the Banks or such
holder in connection with the transactions described in the Agreement.
(i) My opinion as to the enforceability of the Loan Documents is subject to the
effect of Minnesota Statutes 290.371, Subd. 4.
(j) My opinions, insofar as they relate to the enforceability of
indemnification provisions, are subject to the effect of federal and state
securities laws and public policy relating thereto. I express no opinion
with respect to the enforceability of any provision of the Loan Documents
which purports to excuse the Agent or Banks from liability for, or
require the Company to indemnify the Agent or the Banks against, the Agent
or the Bank's negligence or willful misconduct.
(k) My opinion is limited solely to facts and laws existing as of the date
hereof.
The foregoing opinions are being furnished to you solely for your benefit and
may not be relied upon by, nor may copies be delivered to, any other person
except any Participant or Assignee without my prior written consent. By your
acceptance, you acknowledge that this opinion is given without personal recourse
of any nature to me individually.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President,
General Counsel
and Secretary
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated as of
_______________, 19__ is made between _____________________________
_______________________________ (the "Assignor") and _________________________
___________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Amended and Restated
Credit Agreement dated as of July 8, 1997 among DELUXE CORPORATION, a Minnesota
corporation (the "Company"), the banks parties thereto (including the Assignor,
the "Banks"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Agent (as from time to time amended, modified or supplemented, the "Credit
Agreement"). Any terms defined in the Credit Agreement and not defined in this
Agreement are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to make Committed Loans to the Company in an aggregate amount not to
exceed $______________________ (the "Commitment");
WHEREAS, [the Assignor has made Committed Loans in the aggregate
principal amount of $_________________ to the Company] [no Committed Loans are
outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Committed Loans,] in an amount equal to $_______________________
(the "Assigned Amount") on the terms and subject to the conditions set forth
herein, and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Agreement, (i)
the Assignor hereby sells, transfers and assigns to the Assignee, and
(ii) the Assignee hereby purchases, assumes and undertakes from the
Assignor, without
recourse and without representation or warranty (except as provided in
this Agreement) ___% (the "Assignee's Percentage Share") of (A) the
Commitment [and the Committed Loans] of the Assignor and (B) all
related rights, benefits, obligations, liabilities and indemnities of
the Assignor under and in connection with the Credit Agreement and the
Loan Documents.
[If appropriate, add paragraph specifying payment to Assignor
by Assignee of outstanding principal of, accrued interest on, and fees
with respect to, Committed Loans assigned.]
(b) With effect on and after the Effective Date (as defined
herein), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement, including the
requirements concerning confidentiality, with a Commitment in an amount
equal to the Assigned Amount. The Assignee agrees that it will perform
in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
Bank. It is the intent of the parties hereto that the Commitment of the
Assignor shall, as of the Effective Date, be reduced by an amount equal
to the Assigned Amount and the Assignor shall relinquish its rights and
be released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee.
(c) After giving effect to the assignment and assumption, on
the Effective Date the Assignee's Commitment will be $_________________
and the Assignor's remaining Commitment will be $___________________.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to
$___________________________________, representing the Assignee's
Percentage Share of the principal amount of all Committed Loans
previously made, and currently owed, by the Company to the Assignor
under the Credit Agreement and outstanding on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to pay to the
Agent a processing fee in the amount specified in Section 10.08(a) of
the Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued prior to the
Effective Date with respect to the Committed Loans and the
Commitment shall be for the account of the Assignor. Any interest, fees and
other payments accrued on and after the Effective Date with respect to the
Assigned Amount shall be for the account of the Assignee. Each of the Assignor
and the Assignee agrees that it will hold in trust for the other party any
interest, fees and other amounts which it may receive to which the other party
is entitled pursuant to the preceding two sentences and pay to the other party
any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, together with
copies of the financial statements referred to in Section 6.01 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Agreement; and (b) agrees that it will, independently and without reliance upon
the Assignor, the Agent, the Arranger or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit and legal decisions in taking or not taking action under the
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Agreement shall be ___________, 199_ (the "Effective
Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by
the Assignor and the Assignee;
(ii) the written consent of the Company and the Agent
required for an effective assignment of the Assigned Amount by
the Assignor to the Assignee under Section 10.08(a) of the
Credit Agreement shall have been duly obtained and shall be in
full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Agreement;
(iv) the Assignor and the Assignee shall have
complied with Sections 3.01 and 9.10 of the Credit Agreement
(if applicable); and
(v) the processing fee referred to in Section 2(b)
hereof and in Section 10.08(a) of the Credit Agreement shall
have been paid to the Agent.
(b) Promptly following the execution of this Agreement, the
Assignor shall deliver to the Company and the Agent for acknowledgement
by the Agent, a Notice of Assignment in the form attached hereto as
Schedule 1.
[6. Agent [INCLUDE ONLY IF ASSIGNOR IS AGENT].
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the Banks
pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Agent under the Credit Agreement.]
7. Withholding Tax.
The Assignee agrees to comply with Sections 3.01 and 9.10 of
the Credit Agreement (if applicable).
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any lien,
security interest or other adverse claim; (ii) it is duly organized and
existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Agreement and
any other documents required or permitted to be executed or delivered
by it in connection with this Agreement and to fulfill its obligations
hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this
Agreement, and apart from any agreements or undertaking or filings
required by the Credit Agreement, no further action by, or notice to,
or filing with, any person is required of it for such execution,
delivery or performance; and (iv) this Agreement has been duly executed
and delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection
with, and assumes no responsibility with respect to, the solvency,
financial condition or statements of the Company, or the performance or
observance by the Company, of any of its respective obligations under
the Credit Agreement or any other instrument or document furnished in
connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and
has taken, all action necessary to execute and deliver this Agreement
and any other documents required or permitted to be executed or
delivered by it in connection with this Agreement, and to fulfill its
obligations hereunder; (ii) no notices to, or consents, authorizations
or approvals of, any person are required (other than any already given
or obtained) for its due execution, delivery and performance of this
Agreement; and apart from any agreements or undertaking or filings
required by the Credit Agreement, no further action by, or notice to,
or filing with, any person is required of it for such execution,
delivery or performance; (iii) this Agreement has been duly executed
and delivered by it and constitutes the legal, valid and binding
obligation of the Assignee, enforceable against the Assignee in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agrees to execute
and deliver such other instruments, and take such other action, as either party
may reasonably request in connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing signed by the parties hereto. No failure or delay
by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Agreement shall be without prejudice
to any rights with respect to any other or further breach hereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Agreement.
(d) This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of
any New York State or Federal court sitting in The City of New York
over any suit, action or proceeding arising out of or relating to this
Agreement and irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State
or Federal court. Each party to this Agreement hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of
an inconvenient forum to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not
inconsistent with the Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
____________________________________
Assignor
By:_________________________________
Title:______________________________
Address:
____________________________________
Assignee
By:_________________________________
Title:______________________________
Address:
Schedule 1 to
Exhibit L
__________________, 19___
Bank of America National Trust
and Savings Association,
as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Management Services
Deluxe Corporation
_____________________
_____________________
_____________________
Attention:________________
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of July
8, 1997 (the "Credit Agreement") among Deluxe Corporation (the "Company"), the
Banks referred to therein, and Bank of America National Trust and Savings
Association, as Agent. Terms defined in the Credit Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request the consent of the Company
and the Agent to, the assignment by _______________ (the "Assignor") to ________
(the "Assignee") of ___% of the right, title and interest of the Assignor in and
to the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitment of the Assignor and all
outstanding Committed Loans made by the Assignor) pursuant to that certain
Assignment and Acceptance Agreement, dated ______, 19___ (the "Assignment and
Acceptance Agreement"), by and between Assignor and Assignee, a copy of which
Assignment and Acceptance Agreement is attached hereto. Before giving effect to
such assignment the Assignor's Commitment is $_________ and the aggregate
principal amount of its outstanding Committed Loans is
$_______________.
2. The Assignee agrees that, upon receiving the written consent of the
Company and the Agent to such assignment and from and after the Effective Date
(as such term is defined in Section 5 of the Assignment and Acceptance
Agreement), the Assignee will be bound by the terms of the Credit Agreement,
with respect to the interest in the Credit Agreement assigned to it as specified
above, as fully and to the same extent as if the Assignee were the Bank
originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Domestic Lending Office:
Assignee name:_______________________
Address:_____________________________
_____________________________
_____________________________
_____________________________
Attention:___________________________
Telephone: ( )_____________________
Facsimile: ( )_____________________
(B) Offshore Lending Office:
Assignee name:_______________________
Address:_____________________________
_____________________________
_____________________________
_____________________________
Attention:___________________________
Telephone: ( )_____________________
Facsimile: ( )_____________________
(C) Notice Address:
Assignee name:_______________________
Address:_____________________________
_____________________________
_____________________________
_____________________________
Attention:___________________________
Telephone: ( )_____________________
Facsimile: ( )_____________________
(D) Payment Instructions:
Account No.:_________________________
At:_________________________
_________________________
_________________________
_________________________
Reference:___________________________
Attention:___________________________
This Notice of Assignment may be executed by the Assignor and the Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same notice and agreement.
Adjusted Commitment: [ASSIGNOR]
$_____________________ By________________________
Title_____________________
Commitment: [ASSIGNEE]
$_____________________ By________________________
Title_____________________
ACKNOWLEDGED this ______ day of
_____________________, 19__:
DELUXE CORPORATION
By_____________________
Title__________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By_____________________
Title__________________
